Mr. David Ginsburg: Mr. Chief Justice, Your Honors may it please the Court.

The Oyler and Crabtree cases Number 56 and 57 are here on certiorari to the Supreme Court of Appeals of the States of West Virginia.

Both cases involve the application of the West Virginia habitual criminal law.

Oyler and Crabtree both filed petitions for application for habeas corpus with the Supreme Court -- West Virginia Supreme Court of Appeals in 1960.

In those applications, they alleged that the State had not acted in the corpus within its own law.

They also alleged that the action of the trail court was in violation of the Equal Protection Clause of the Federal Constitution.

They also alleged that there had been a violation of procedural Due Process in that, they had had no pretrial notice that the habitual criminal law would be invoked against them.

The West Virginia Supreme Court of Appeals denied the writs without calling for return, without hearing, without an opinion.

The facts in the case are undisputed.

Oyler was indicted for murder.

He was arraigned and assigned court-appointed counsel.

He pleaded not guilty.

He was tried and he was convicted of murder in the second degree.

Murder in the second degree under the laws of the State of West Virginia carries a penalty of five to 18 years in prison, penitentiary.

About a week later, without prior notice, the prosecuting attorney of Taylor County filed an information that Oyler had three times been indicted for felonies, breaking and entering, burglary and grand larceny and that all of these had taken place in Bedford County Pennsylvania.

Oyler was asked whether he was the person who has identified in the information and he acknowledged that he was.

Justice Charles E. Whittaker: Information charged simply that he'd been three times indicted?

Mr. David Ginsburg: He had been three times indicted and convicted.

Justice Charles E. Whittaker: And convicted?

Mr. David Ginsburg: And convicted.

There was no reference in the information, in the -- at the time of the order of commitment to the sentence and I shall proceed to and consider the differentiation between the crime which was alleged in the sentence which (Voice Overlap) --

Justice Felix Frankfurter: How -- how many days after the West Virginia --?

Mr. David Ginsburg: Seven days.

Justice Felix Frankfurter: And for he's been -- had been on the locking key of -- during those --

Mr. David Ginsburg: He had been on the locking key during this period.

Justice Felix Frankfurter: He was brought in --

Mr. David Ginsburg: He was brought before the Court, he stood there.

Justice Felix Frankfurter: You mean after the seven days?

Mr. David Ginsburg: Yes, what actually happened Mr. Justice Frankfurter was that there was a motion for a new trial.

The -- that motion was --

Justice Felix Frankfurter: The court-appointed -- by his court-pointed counsel?

Mr. David Ginsburg: By his court-appointed counsel.

That motion was denied.

The man was then brought before the Court.

The prosecuting attorney then rose, presented an information to the Court.

We don't know on the basis of this record whether that information was actually handed to the Court at on that day.

In fact, the information is dated a -- two days later.

The order of commitment which sentenced to life imprisonment was dated on 11th for the month.

The -- the information happens to be dated the 13th.

Justice Felix Frankfurter: Was his counsel -- was his court-appointed counsel (Voice Overlap)

Mr. David Ginsburg: His court-appointed counsel was present.

He was standing there.

He heard the information read.

He saw it presented.

He was asked and under the laws of the State West Virginia, that's all that could have been done.

He was asked whether he was this -- was the person identified the information.

He said, “He was.”

Justice John M. Harlan: Was there any request for an adjournment?

Mr. David Ginsburg: There was no request for an adjournment Your Honor, but the -- as these matters move of neither had notice.

Neither the defendant nor the counsel had prior notice that an information was to be brought in.

They heard it there for the first time.

Justice Felix Frankfurter: Does the record show what if any participation counsel took in these proceedings?

Mr. David Ginsburg: No sir, the record is --

Justice Charles E. Whittaker: (Inaudible) or later.

Mr. David Ginsburg: No sir.

What -- Mr. Justice Whittaker what actually happened was that he was tried and convicted for second degree murder and then he was taken back to jail.

A week later, he was brought back.

He counsel in the meantime had filed the motion for a new trial.

A week later, he was brought back.

His motion for the new trial was denied.

A -- an information was then handed up to the -- to the Judge, alleging that he had three times before been convicted of felonies.

I want to go into this matter of the felonies which were alleged in -- in the information.

And immediately, the Judge turned to the prisoner, asked whether he was the man identified in the information.

He said, “He was,” he was.

Justice Felix Frankfurter: Mr. Ginsburg.

Mr. David Ginsburg: Yes sir.

Justice Felix Frankfurter: One inference is certainly permissible namely that his counsel must had been notified to be there.

Mr. David Ginsburg: His counsel -- there -- the only inference that can drawn Mr. Justice Frankfurter is that his counsel had filed a motion for a new trial.

Justice Felix Frankfurter: Yes, but does a motion for new trial required personal presence of counsel?

Mr. David Ginsburg: Indeed it does and I would -- but there's--

Justice Felix Frankfurter: But it's happened to be just -- that much must -- there must be inference to -- in somehow rather would notify to be there or brought himself there contemporaneously with this proceeding on the recidivist charge.

Mr. David Ginsburg: There is absolutely no -- there is nothing of the record Mr. Justice Frankfurter.

Justice Felix Frankfurter: We're going an inference for a minute.

I'm just trying to know what happens.

Mr. David Ginsburg: Yes, there is nothing in the record which in anyway can indicate that his counsel had prior notice and indeed sir, I believe that there is clear indication that he probably did not because the information had attached to it dated -- from the coun -- from the Court in Bedford County Pennsylvania dated two days before.

He was brought in on the 11th.

On the 9th of the month, the court of the county court in Bedford County Pennsylvania certified, it's in the record, certified that there had been these prior offenses.

Now it's --

Justice Felix Frankfurter: Let me ask you this question.

Mr. David Ginsburg: -- just to finish.

I think that it's highly unlikely on the basis of that indication and still any indication we have in the record that counsel in fact knew that the recidivist charge would be brought up before the Court on that day.

Justice Felix Frankfurter: Would -- would convicted defendant have to be present when his counsel filed the motion for new trial?

The point of my question is evidently -- evidently, the authorities brought him in with reference to recidivist matter, whatever may have been notification to counsel.

I'm not drawing any inference of events.

I just want to know what happened.

Mr. David Ginsburg: I cannot tell beyond but I've indicating on basis of the record that we have here and for myself, I find it the difficult to draw inferences on this.

Justice William J. Brennan: Mr. Ginsburg.

Mr. David Ginsburg: Yes sir.

Justice William J. Brennan: Is there any indication in the record that the 11th, the return day of motion --

Mr. David Ginsburg: No, the 11th was the -- no sir.

The 11th was the date of the order of commitment.

That's the date in which the Court recites.

Justice William J. Brennan: Does the record show us one by what action in the motion for trial was denied?

Mr. David Ginsburg: It was on that day.

Justice William J. Brennan: That's same day?

Mr. David Ginsburg: On that same day.

If the Court would turn page 28 of number 56 of the Oyler record, this day came the state by her prosecuting attorney as well as the defendant William Oyler in person -- and in the custody of its sherif.

And sat at bar of the Court and was represented by William T. George Sr., his counsel.

And thereupon, the defendant by counsel tended leave and asked leave to file his memorandum in writing, assigning grounds and support of the motion.

Justice William J. Brennan: Well right there, does it that the (Inaudible), the reason why the counsel (Voice Overlap)

Mr. David Ginsburg: Yes, -- he was -- as far as the record indicates in that order, counsel was there to file his memorandum and support of his motion for a new trail.

The motion then thus we see in the rest of the paragraph is overruled.

You mean, without reading it that does the overruling, is that (Inaudible)

Mr. David Ginsburg: Well, all that we know sir is indicated in that paragraph and the Court perceiving no good grounds therefore.

The said motion was overruled to which action of the Court, the defendant objects and accepts. That's all we know.

Justice William J. Brennan: But looks, there were some proceedings here on the motion for new trial.

Mr. David Ginsburg: There were certainly was some proceeding on the motion for new trial.

But there is no indication.

Presumably, that's why a counsel is there, but there was no indication that counsel had any prior awareness that the -- an information would be filed.

And indeed, as I'll indicate later on, there is a decision of the Highest Court in the State West Virginia which says that no notice is required.

Justice Potter Stewart: Mr. Ginsburg, had the petitioner already been sentenced for -- for this second degree murder?

Mr. David Ginsburg: No sir.

Justice Potter Stewart: So this probably the sentencing day also --

Mr. David Ginsburg: This is indeed the sentencing day.

Justice Potter Stewart: That's reason the defendant was there.

Mr. David Ginsburg: The defendant was there to be sentenced.

He was --

Justice Felix Frankfurter: I thought he had been sentenced before?

Mr. David Ginsburg: No sir.

Justice Felix Frankfurter: I beg your pardon.

Mr. David Ginsburg: He know --

Justice Felix Frankfurter: He merely acted and convicted for second degree --

Mr. David Ginsburg: He had been convicted and sentenced but it was deferred.

Justice Felix Frankfurter: Oh you give us merely the -- the --

Justice Potter Stewart: Statutory term.

Justice Felix Frankfurter: -- the statutory term.

Mr. David Ginsburg: Yes sir.

Justice Felix Frankfurter: Okay.

Mr. David Ginsburg: Sentence was deferred and this was sentencing day.

Unknown Speaker: Mr. Ginsburg (Inaudible)

Mr. David Ginsburg: No, not -- there was no reference to his specific day -- to his specific day -- a day sir.

What actually happened is that so far as we can see he was -- his counsel brought in his motion for a new trial.

The -- the memorandum was filed.

That action was overruled.

The prosecuting attorney then get up -- got up and handed in his information and the man was then sentenced.

This point, there are some significance.

At the bottom of the page of the record on page 28, and the Court proceeding to pass sentence upon the defendant, upon the verdict of murder in the second degree, found by the jury on the trial of the charge contained in the indictment herein and upon the former convictions of felonies as after said then sentenced him to life.

He could not have been sentenced to life under the life imprisonment under -- for the offense which he had originally been charged.

Justice Felix Frankfurter: You haven't gotten the general entries of the clerk of the Court.

Mr. David Ginsburg: We do not sir.

Now, the Court would further notice on this paragraph that the -- the trial court then recommended parole, parole for the defendant, as soon as he was eligible therefore.

Now, the order of commitment which we just looked at is dated February 11.

The information -- the information which presumably was handed up on that day is contained on page 13 of this record.

That information is dated February 13th.

Now, apart from the discrepancy in dates, it's interesting to examine what it was that this man was charged or what he did he do, why was he charged now under the recidivist statute?

These were the charges.

First, that he had stolen an automobile.

That he had pleaded guilty, waved counsel and that he had been placed on probation.

He had not been sentenced to jail nor had even sentenced to penitentiary.

Second, a year later, this same man Oyler, had broken into a drug store, stolen $50 and a week after that, broken a second time, stole a $198.

What happened?

Was he sent to jail?

No.

The second time he was fine $25 on each count and he was sent to the Pennsylvania Industrial School at Camp Hill.

This was --

Chief Justice Earl Warren: (Inaudible) at that time Mr Ginsburg.

Mr. David Ginsburg: At that time, the record does not indicated.

My brother Mitchell has included the fact in his memorandum.

He was 20 years old.

Now, it has been pointed out by the State of West Virginia and properly, that this was done under a Pennsylvania statute which permitted males between the ages of 15 and 21 to be sent to the Pennsylvania Industrial School in cases where they could have been sent to the penitent -- to the penitentiary.

It's true.

Oyler could have been sent to the penitentiary for these offenses.

He was not because the Court exercised its discretion to send him to the Industrial School.

That was the -- and this is one of the factors in the case.

Well, --

Justice Felix Frankfurter: Then -- then maybe -- then maybe Pennsylvania local law and the Pennsylvania law as to what to State is (Inaudible) the person sent there, Pennsylvania purposes, he may not be deemed to have been convicted.

Mr. David Ginsburg: We will have that problem when we come to the law in West Virginia and that we'll come specifically to it.

Justice John M. Harlan: What did you say with the sentence raised, first offense?

Mr. David Ginsburg: First offense, he was placed in probation.

He was fined a $100 and placed on probation.

Second time, he fined $25 each time and then sent to the Industrial School (Voice Overlap)

Justice John M. Harlan: Apparently, from this order, the facts that you just raised namely that he was not in probation (Inaudible) in other order.

In orders, the Court acted on, acted with information.

Mr. David Ginsburg: As far as I can see that's possible Mr. Justice, but I'm not clear on that myself.

Justice John M. Harlan: Well, (Inaudible) say it's older than the case -- the first case you said he was -- he was sentenced (Inaudible) institution, he'd be placed on probation.

Mr. David Ginsburg: I don't find that sir in the order of commitment which is dated February 11th on page 28 of the record.

Justice John M. Harlan: I'm looking at -- oh, I beg your pardon.

I'm looking at the information (Voice Overlap)

Mr. David Ginsburg: The information is quite clear, quite specific in the fact that I've recited, but that information, that data as far as we can see may or may not have been before the Court.

We don't know because the Court in its order of commitment seeks to incorporate the information by reference but the information apparently was prepared at least two days later so far as we can see from the dates.

It may not be so.

It maybe an -- an error on the date in the record but these are facts we haven't.

Justice John M. Harlan: Of course we -- if the court in fact did have the information (Inaudible) suggested with (Inaudible) by its interpretation by its own statute (Inaudible)

Mr. David Ginsburg: Well, we'll come to the --

Justice John M. Harlan: -- will brought recidivist at the statute (Inaudible)

Mr. David Ginsburg: We'll come to text of the recidivist statute in just a moment sir.

Now, the facts in the Crabtree case are also undisputed.

Crabtree was indicted in Lincoln County West Virginia for forging a $35 check.

That was the offense for which he was brought before the Court.

In Oyler, the man pleaded not guilty and was given a trial.

Crabtree pleaded guilty and he was subject for that offense to a penalty up in two to 10 years.

Now again, a week after the arraignment, the County prosecuting attorney filed an information, invoking the state's habitual criminal law and he did so on these grounds.

First, that in 1954, Crabtree had been sentenced by the Criminal Court of Walla Walla in the State of West -- in the State of Washington for the crime again of forgery and had served two and half years in the State Penitentiary in the State of Washington and secondly because in 1947, he had also been sentenced to the State Penitentiary in West Virginia by the Cabell County Criminal Court.

Crabtree admitted when he was called before the Court in the exactly the same procedure that we've indicated heretofore.

That he was the person who was identified in the information which had been – which was handed up at that time.

Justice Potter Stewart: So he had lawyer with him.

Mr. David Ginsburg: He did have a lawyer sir, yes sir.

And in his habeas corpus petition, however, he pointed out that there was an error in the information that he had not been brought before the Criminal Court in Walla Walla.

He had been brought before the Criminal Court in Yakima.

My brother Mitchell of the State of West Virginia will argue that this is harmless error.

The point which I shall make in this case is that he never had an opportunity to test whether this error or other errors was or was not harmless.

Now, Crabtree in his habeas corpus petition just as Oyler did raise the constitutional point which I've been indicated equal protection and procedural due process and now, I would like to get to the West Virginia statute.

The statute effects of it, is indicated in -- is set forth in the appendix to the petitioner's brief, Sections 18 and 19, two sections; first Section 18; punishment for second or third offense of felony.

When any person is convicted of an offense and the subject to confinement in the penitentiary therefore, and it is the determined as provided in Section 19 of this article that such person had been before convicted in the United States of a crime punishable by imprisonment in penitentiary, the Court shall, the Court shall, if the sentence to be imposed as definite term of years so on, add five years.

And then the second paragraph which is the paragraph applicable to this case, when it is determined, again, as provided in Section 19 hereon that such person shall have been twice before convicted in the United States of a crime and these are the operative words “punishable by confinement in the penitentiary.”

Well, so far -- so -- as so far as concern -- concerns Oyler, the crimes which he had committed, were as I've said, subject to -- he could have been confined in the penitentiary for those crimes.

He was not in fact, He was on the -- the one case put on provision and the other case sent to an Industrial School, but now, if the court will -- will look at Section 19.

“It shall be the duty of the prosecuting --

Chief Justice Earl Warren: Where is that Mr. Ginsburg?

Mr. David Ginsburg: Section 19, the following section sir.

Chief Justice Earl Warren: Yes, on what page?

Mr. David Ginsburg: Oh on -- it's in the appendix to the petitioner's brief.

Chief Justice Earl Warren: Oh, yes. Well, thank you.

Mr. David Ginsburg: And it's the Section which gives me some concern.

“It shall be the duty of the prosecuting attorney when he has knowledge of former sentence or sentences to the penitentiary, when he has knowledge of sentences to the penitentiary of any person convicted of an offense punishable by confinement in the penitentiary to give information to the Court thereof immediately upon conviction and before sentence.

Now, if we focus exclusively on Section 18, it seems to be quite clear that the issue is whether the person was subject to an offense punishable by confinement in the penitentiary.

Section 18 concentrates on the offense.

Section 19, however, seems to point to the punishment, was he in fact confined in the penitentiary?

This gives rise to one of the ambiguities, one of the problems in the case.

Justice John M. Harlan: Has the Virginia Courts ever --

Mr. David Ginsburg: The West Virginia.

Justice John M. Harlan: (Inaudible) ambiguity?

Mr. David Ginsburg: I will come to that sir.

Justice John M. Harlan: Yes.

Mr. David Ginsburg: I don't -- I'm not clear in my own mind as to whether they have.

I believe that the Court has indicated its view in a case where the constitutional issue, the -- the Fourteenth Amendment issue, it was not raised.

It was concerned to that case as will see in the Blankenship case solely with the problem of statutory interpretation under the West Virginia Law.

Now, as I read the statute, there are various conclusions that follow from the text of the law. First, the application of this statute is mandatory.

There is one other provision of the statute which it might be worth looking at by way of contrast.

Section 18 is -- as I've been indicated, deals with problem with the offense.

Section 19, a procedural section but also refers to the matter of the sentence.

And then on page 38, the bottom of the page, there is a procedure in sentencing convicts to further confinement for second or third offense.

This -- this statue deals with the problem where to the convicts have actually been imprisoned and then the Warden learns that they had been subject to prior offenses and it provides a procedure whereby the convicts maybe taken from the state penitentiary and then subject to the procedures, the habitual offender is active in recidivist statute.

And I point out to the Court that there is sharp distinction between Sections 18 and 19 on the one hand in this other provision which can invoke a separate procedure.

In the one case, it's permissive.

The Warden of the penitentiary on the top of page 39 may give information thereof.

In 10 years, this provision has not been invoked.

In the case of Sections 18 and 19, they are mandatory.

It is obligatory on the -- on the prosecuting attorney if he has knowledge to give that knowledge to the Court and to invoke the statute.

There is no discretion in connection with the West Virginia recidivist statute.

Justice Felix Frankfurter: 19 -- 1955 doesn't mean that that state of the original statute, does it Mr. Ginsburg?

Mr. David Ginsburg: No sir.

This statute was amended 1943 and I think it's well now to take a look at -- reference has been made in -- by my brother Mitchell to this case Landmark case in this area, of Graham against West Virginia.

And I think it might be helpful to the Court to examine the statute which was before the Court in Graham against West Virginia and the text of it is set out on the petitioner's brief on page -- the bottom of page 31.

This was the statute in Graham against West Virginia and it sharply -- is in sharp contrast to the statute that we have here, the bottom of page 31 of the petitioner's brief.

When any person is convicted of an offense and sentenced to confinement therefore in the penitentiary and it is alleged than the indictment on which he is convicted and admitted or by the jury found that he had been before sentence in the United States to a life punishment.

He shall be sentenced to be confined to five years and so on.

There is absolutely no doubt that in the statute that was before the Court in Graham against West Virginia.

First, there is no problem of procedural due process, because he had noticed under the Graham statute, he had noticed that habitual offender procedure would be invoked against them because it had to in the indictment.

Secondly, the statute is explicit that the offenses must have not only been subject to confinement in the penitentiary, but that the man must actually have been confined with the penitentiary.

The two issues that are involved in this case would not have been involved in Graham against West Virginia.

Justice Potter Stewart: As to the first distinction was the contention on the State I suppose for the change of the statute that is the -- in -- and the statute no longer requires that the prior offenses be set out in the indictment, but that change was mitigating change.

Mr. David Ginsburg: And that's what I point out sir at the bottom of page 32, the continuation of the footnote.

In 1943, the law was amended to prohibit reference to previous convictions and indictment.

This was done to safeguard the interest of the prisoner and to prevent prejudice.

There is no indication, however, that the state legislature in 1943 also intended to change the requirement that prior offenses for purpose of the act must have been subject by confinement in the penitentiary.

Chief Justice Earl Warren: Mr. Ginsburg --

Mr. David Ginsburg: Yes sir.

Chief Justice Earl Warren: -- under this prior law that was interpreted in Graham versus West Virginian, was it compulsory upon the District Attorney to file those charges as it is -- you say it is here or was that discretionary?

I don't believe it says, it doesn't refer to that in the (Voice Overlap)

Mr. David Ginsburg: The West Virginia statute, Mr. Chief Justice, has been subject to widespread criticism, both before and after 1943.

Some of the materials are indicated in the brief.

It has been treated; it has been discussed as if this 1943 statute was mandatory.

I'm not my own mind clear that it was.

I know that the commentators have so regard there, but there is no doubt that the person statute is one of the few in the country would -- in this field which is absolutely mandatory that it must be invoked and that the only purpose for bringing the man before him -- before the Court is the matter of identification, is he the man.

If -- is the man, he must -- if he's brought before the Court for that purpose, he must be sentenced for life imprisonment or subject to the enhanced penalty.

Chief Justice Earl Warren: May I ask this question also please?

Under the previous statute, has the Supreme Court said what defenses were opened to him when such a charge or was he there under that statute limited only to identity?

Mr. David Ginsburg: In fact their cases have risen in the State of West Virginia sir, where other -- where defenses have been raised.

Whether they were raised on the basis of the Court's own motion on the base of argument on a -- on -- on habeas corpus petitions or whether they were actively discussed below, this is not apparent in the cases.

But the -- the procedure in this case is unique in the sense that the man is not permitted in anyway to comment on -- to raise the question of the applicability of the statute, simply to determine whether this statute is applicable to him at all in terms, in the jurisdictional sense.

Now, there were two -- there are two decisions, in the Highest Court of West Virginia which I think they're on this -- this matter.

One is Johnson and Skeen and this really bears on the Oyler case.

Johnson and Skeen, is discussed in the respondent's brief on page 17.

The Court had before it habeas corpus application which sought release from a life sentence to the penitentiary, under the habitual criminal law, on the ground that one of the prior sentences had not been to a penitentiary, but had been to a jail, and the facts in that case maybe of interest.

Johnson had pleaded not guilty to a charge of malicious wounding and the he changed it to a plea of guilty to a charge of unlawful wounding.

This happened the second time.

Again, he pleaded not guilty to a charge of malicious wounding and then he pleaded guilty to the lesser crime of unlawful wound.

This time, the second offense, he reached an understanding with the prosecutor attorney in the County that he would be sent not to pen -- the penitentiary, but he would be sent to the county jail for six months and he would be fined $50.00 and it happened the 13th.

Johnson was once more indicted from murder and this time, the recidivist statute was invoked on the ground that he had been subject to a sentence of -- he was subject to crimes punishable by imprisonment in the penitentiary, punishable by imprisonment in the penitentiary, because he could have been.

He could have been sent to the penitentiary in both cases for unlawful wounding.

In one case, he was and the other case he was not.

The West Virginia Court had the same statute before it that we have here today and it held that despite the fact that he was sent to jail, the Court would look to Section 18 which speaks of punishable by imprisonment in the penitentiary and not to Section 19.

It would not regard Section 19 as interpretive of -- of Section 18.

I think that the respondent's brief -- yes, pages 17 and 18.

The Court clearly says there's not doubt about it that the substantive provisions of the West Virginia law are contained in Section 18 that the adjective provisions, the procedural provisions are contained in Section 19.

Section 18, the Court says in its very term, it is clear and explicit.

It governs the substantive for additional sentences and so on.

Now, this is one case.

I happen to disagree with the results the interpretation but this is the fact of which this Court must record.

Now, the -- we now have the -- a second case which is the matter of the Blankenship case.

That's discussed on page 12 of our brief.

The Blankenship case involved the problem of notice.

The case was specifically raised under this statute before the West Virginia Supreme Court of Appeals, was notice require to the defendant -- to the -- to the criminal before the information could be filed which -- on which the previous convictions were based.

The Court held in that case that notice was not required.

The Court's attention was not directed to the matter of the procedural due process under the Fourteenth Amendment.

It says, it was concerned specifically with the problem of statutory interpretation of the West Virginia law.

This issue so far as we can see a constitution issue was not been discussed, but it's nevertheless, these are the two cases which we must -- the -- here be concerned.

Justice Felix Frankfurter: Mr. Ginsburg, I am now -- I want to refer to the Graham case.

Mr. David Ginsburg: Yes sir.

Justice Felix Frankfurter: I have now looked at the Graham case and while it is true as you've said that the statute at the time or one of statutes, one of provisions of West Virginia at the time provided for inclusion in the indictment, an allegation in the indictment, the particular case -- and the particular case that wasn't the situation.

The indictment in that case did not mention the prior conviction, but the case arose under another provision that provision would you set forth on page 38 of your brief --

Mr. David Ginsburg: Yes sir.

Justice Felix Frankfurter: Page 38, isn't it?

38, I think --

Mr. David Ginsburg: Yes sir.

Justice Felix Frankfurter: Namely, the provision for subsequently calling attention to the Court for information that the, convicted defendant that has prior record of convictions and in that case notice there was a separate proceeding on information so far as I can tell from the -- Justice Hughes's opinion, the only thing that was contested as to whether this -- whether Graham -- was the Graham, the prior (Voice Overlap)

Mr. David Ginsburg: To matter of identification only.

Justice Felix Frankfurter: Matter of identification only and -- and one does not know what else was open.

So that there was notice at least that that issue was contested, but in -- in this case, nothing turns on identification, is that right?

Mr. David Ginsburg: No sir.

These criminals both admit that they were the people identified in previous --

Justice Felix Frankfurter: So that --

Mr. David Ginsburg: I have a feeling here Mr. Justice Frankfurter that Mr. Justice Hughes was concerned in the Graham case with issues, which turned fundamentally on substantive due process not on the matter of the procedural issue which we're raising here.

Justice Felix Frankfurter: Well, I was going to say, the -- the issues were different so far as notice is concerned.

Mr. David Ginsburg: Well, there was ample notice.

Justice Felix Frankfurter: So far as notice concerned, there was notice of course in Graham in this Court.

Mr. David Ginsburg: No.

Justice Felix Frankfurter: But it was notice here.

Well, if you permit me, there was notice when he was told what the consequences of the manner in which he was told at the circumstances is really the question in this case, isn't it?

Mr. David Ginsburg: It's one of the questions in this case --

Justice Felix Frankfurter: Well, I mean the -- the -- what the local West Virginia law is unless your state is so big we can't tell, outside of our province, isn't it, what really are you complaining are and my -- the -- the earnestness of my question doesn't betray an answer I can assure you, what is it you're complaining now that he didn't have a chance to confess what?

I'm the Oyler” and everything you say is true about those convictions.

Mr. David Ginsburg: He should have had an opportunity (Voice Overlap) or to prepare.

Oyler should have had an opportunity to consult with his attorney regarding the prior offenses.

Is it true that under West Virginia law in fact that a man who's been put on probation for on offense and that he's been sent to the -- to the Industrial School for a second and third offense in fact under West Virginia law, although, he was charged in the information for the second and third offenses under West Virginia Law, it's not true that these were second and third offenses because they occurred during the same term of court, the West Virginia law regarded it as a single evidence.

So we have a one offense for the theft of the car for which he was placed on probation, the other on which he was sent to Industrial School.

Now, may man not consult with his attorney or if not the attorney to have had the opportunity to investigate what the law was or he not merely -- certainly he had notice in the sense that he was brought up before the Court and he was told that the recidivist statute would be -- was going to be applied against him, but did he have an opportunity to prepare his case?

Justice Felix Frankfurter: Let me --

Mr. David Ginsburg: To prepare his defenses to bring these issues before him?

He did not.

Justice Felix Frankfurter: I'm trying to sharpen in my own mind, my understanding of exactly what we have to decide in this case.

Suppose the trial judge had said Mr. Jones, the counsel to the Oyler, you have heard the information and the facts there in set forth, these prior convictions in wherever for, the Pennsylvania County.

Have you anything -- you want time to consider this --

Mr. David Ginsburg: Precisely.

Justice Felix Frankfurter: -- and he said no -- suppose he's said no, what would you say?

Mr. David Ginsburg: He would have waved of his right.

I thought it might have regard to him as an intelligent lawyer but he could have waved his rights and men had been bound by this before.

Justice Felix Frankfurter: Yes.

The record here is balance to really what took place, isn't it?

Mr. David Ginsburg: No sir, I don't think so.

I think the record is quite clear that the man --

Justice Felix Frankfurter: I'm not suggesting that even if it – barren -- sufficient -- sufficient for your purpose, but I just wonder what it is ultimately, that this case cutting it to bone what -- how -- where in this case defer from Graham in which there was tried merely the identification and -- nor of course, you can say (Inaudible) doesn't understand that they weren't (Inaudible), were they?

Mr. David Ginsburg: No.

Justice Felix Frankfurter: Your issues one place in Graham.

Mr. David Ginsburg: Suppose let's take some of these possible cases.

Suppose a man had been tried before and convicted but it's subsequently found that he was innocent.

Ought not he then to be able to come before the Court and argue, that true, I am subject to the statute.

I am the man who was involved, but in fact, I did not convict -- I was not -- I am -- was innocent of it.

Or suppose he had been pardon by the Government in the case, do we consider this as part of the recidivist statute, ought not judge to hear argument on it to -- to have this lawyer -- to have the lawyer prepare the case, to argue the case before him?

Supposed it had been a misdemeanor repeated but then becomes a felony, ought he not been to be able to bring these issues to the Court and have the Court decide them, instead he was called up, put before the Court ask, “Are you the man?”

And this is the procedure which is defended by the State?

Are you the man?

If he is, he is -- he can be put in jail for life and he was.

Justice Felix Frankfurter: (Voice Overlap) is it unfair -- is it unfair to say that what this cause really gets down to is that he had a lawyer within -- and oppose the cautionary proceeding or cautionary conduct on his part that the lawyer should have exercised and the attorney gets (Inaudible)

Mr. David Ginsburg: No sir, I think it gets down to a law, which does not provide that opportunity for a lawyer.

Justice Felix Frankfurter: But the lawyer was right there.

He could have said, “Your Honor one minute, I have two things to say.

I have several things to say” which I would acknowledge if you told me Mr. Ginsburg, namely that he could be a contradiction in the West Virginia legislation.

It's ambiguous.

It's obscure.

I want to look at what the -- the industrial confinement (Inaudible) mean, et cetera, et cetera.

Suppose he said that and the judge said that I don't want to hear you then it -- then he had a clear case of setting off an opportunity to be heard.

Mr. David Ginsburg: I find --

Justice Felix Frankfurter: But the employer just -- just was mute for all the record shows.

Mr. David Ginsburg: No, Mr. Justice I find the law clear enough.

Section 19 which sets forth the procedure, which is to be followed here, “Said court shall before the expiration of the term that which such this --” at the bottom of page 37.

Such person was convicted, cause such person or prisoner to be brought before it and he was in this case and upon the information filed by the prosecutes -- prosecuting attorney that was, setting forth the records of convictions and sentences of the case maybe and alleging the identity of the prisoner with the person named in each, shall require the prisoner to say whether he is the same person or not.

If he says he is not or remain silent, his plea or the fact of his silence shall be entered of record, and a jury shall be empaneled to inquire whether the prisoner is the same person mention in the several records.”

The problem is one of identity.

If the jury finds that he is not the same person, he shall be sentenced upon the charge of which he was convicted as provided law, but that he finds that he is the same or after the unduly caution to be acknowledges in open court that he is the same person, the Court shall sentence him.

This is the procedure, the man has called before the court and asked, “Are you the person who was convicted before?”

If he is --

Justice Felix Frankfurter: What -- what you're saying is that if my hypothetic lawyer had been alert and aggressive as lawyer should be, the Court could properly, according to West Virginia law had sealed his mouth and said, “I don't -- "

Mr. David Ginsburg: I --

Justice Felix Frankfurter: “I'm not going to hear you.”

Mr. David Ginsburg: I may not hear you.

Justice Felix Frankfurter: I may not hear, the law who precludes my hearings.

Mr. David Ginsburg: And that is exactly --

Justice Felix Frankfurter: Would you say that's the case?

Mr. David Ginsburg: That is what I believe to be the law of West Virginia and that I believe is the case that's before this Court.

Justice John M. Harlan: Do you know how it's been administered in practice?

Mr. David Ginsburg: Yes sir.

And this will, perhaps, lead us into the problem of the discussion of equal protection.

Because the law has been -- is mandatory, it's very hard to apply these laws.

It leads to bargain justice.

It's so simple for the prosecuting attorney to say on this third offense that, “If you plead guilty then we will not invoke the -- the recidivist statute,” studies have been made.

Justice John M. Harlan: That isn't quite what I meant.

Are there institutes where a lawyer has brought in to the Court and said, “I don't know have any issues to identity and (Inaudible) to the facts.

But I want time to study the Virginia law.”

And the Court says, “Well, I can't give you any time because (Inaudible) on the statute.”

You have permitted those?

Mr. David Ginsburg: No.

We have no cases which would go --

Justice John M. Harlan: May I know what the practice has been, whether (Inaudible) about that kind?

Mr. David Ginsburg: Well, my Brother Mitchell maybe able to help us on this but I'm not sufficient and familiar with it to be able to assist the Court in that matter.

Justice John M. Harlan: It's a -- it's unusual written of the statute (Inaudible) it deprives the court of its discretion --

Mr. David Ginsburg: It's the Court --

Justice John M. Harlan: -- in time if it's asked.

Mr. David Ginsburg: There have been -- there are decisions cited in the brief in which the Court has repeatedly said this statute is jurisdictional -- this statute was mandatory and the provisions -- the procedure at jurisdictional, it must be very closely followed where the Court -- where the trial courts have -- have gone beyond the procedure set forth in Section 19, they have been reversed.

What the --

Justice Charles E. Whittaker: (Voice Overlap) doesn't someone Mr. Ginsburg have to make a determination as whether the records of prior convictions bring the accused within the Pennsylvania recidivist statute?

Mr. David Ginsburg: This is what I believe -- this is the point that Judge Hastie made in Collins and Claudy cited in the -- in the brief.

What you're speaking about now there's a matter of identity is an issue for the jury if denied, isn't it?

But the question whether -- where the records are adequate to invoke the statutes the question of law, isn't it?

Mr. David Ginsburg: Yes, I would say that it was a question of law and I would say surely that the Court ought to hear argument on this, that there ought to be a hearing, an opportunity for a hearing on the application of the recidivist statute.

Justice Charles E. Whittaker: Suppose statute said that (Inaudible) that Court gave him an opportunity?

Suppose the Court was to say where here you have a conviction number one, conviction number two, conviction number three, whatever the number is and a lawyer, it's the only crossing him now under the statue applied to sentence to nine years, the lawyer gets up and said, “Well, sorry.

You've got number one (Inaudible) come on the statute.

Mr. David Ginsburg: Oh the --

Justice Tom C. Clark: Whether you got the under the statue --

Mr. David Ginsburg: But the --

Justice Tom C. Clark: -- striking it down.

Mr. David Ginsburg: The purpose of the caution, the language of the statute is used here, and as indicated in the commitment order in the Oyler case, the caution is to tell them at, that if he does identify himself as the person who was before convicted, that the statute will be invoked against him.

Now, in this case, there's no question of -- of identity, there isn't error in the information in one case, but there is no question of identity.

And he was caution, he was told that, “If you are the man who was convicted before, then you will be subject to this habitual criminal procedure” and he got up and said, “I am the man”.

Justice Charles E. Whittaker: But that still wouldn't support the judgment unless the records of prior convictions actually invoke the statute.

Mr. David Ginsburg: I believe that -- I certainly I would agree with you Mr. Justice Whittaker and I would also ask that a proper procedure there means, as for example the - the Court in Kansas.

A case also cited here, the man was given ten days written notice that the habitual criminal statute would be invoked against it.

In Collins and Claudy, and this point which is we have now, was reserved by the court in Chandler and Fretag, the -- involving the Tennessee statute.

A Tennessee statute which did not provide for hearing on the application of a recidivist statute, but that statute was subsequently amended.

Three Circuit Courts of Appeals have had this problem before them.

All of them have said that there should be ample notice and that there should an opportunity to be heard on the application of the recidivist statute.

The Third Circuit, the Sixth and the Tenth, cases are cited --

Justice Charles E. Whittaker: Now, when you say ample notice, I understood you a while ago that you say you meant notice in advance of the return of the indictment or information, but you don't really mean that, do you?

Mr. David Ginsburg: Oh --

Justice Charles E. Whittaker: It -- it wouldn't notice afterward be just as good?

Mr. David Ginsburg: I wonder.

Now, just take the case of the Crabtree.

Crabtree pleaded guilty, and he pleaded guilty to the supporting of $35 check.

At the time when he had no awareness, that the habitual criminal statute would be invoked against him if did plead guilty and that's the problem.

They should be given notice and advance of trial.

I'm not saying certainly that there should be – it should be contained in the indictment.

It need not be contained in the indictment, but just as the State of Kansas has worked it out and other States had worked it out, the criminal is given notice before he pleads, before he pleads.

Justice Charles E. Whittaker: To the principal case?

Mr. David Ginsburg: To -- before he pleads to the principal case which is the second or third offense.

Justice Charles E. Whittaker: Yes.

Mr. David Ginsburg: As to whether the habitual criminal procedure would be invoked against him, and in this case. Crabtree pleaded guilty to a $35, forging a $35 check which subsequently put him away for life without knowing that this procedure would be invoked against him and without having had an opportunity for hearing on the application of that procedure and to me this seems outrageous.

Justice Felix Frankfurter: Mr. Ginsburg.

Mr. David Ginsburg: Yes sir.

Justice Felix Frankfurter: I know you didn't file the petition to this case and (Inaudible) afterwards, but now that I understand your -- your petition, tested procedure, you'd agree that procedurally this is really on the plead because you're attacking the statute, is that right?

I don't -- I don't make any difference (Voice Overlap)

Mr. David Ginsburg: Yes, now I understand that.

Justice Felix Frankfurter: -- is validly here, but you're really attacking the statute in (Inaudible) to an appeal, isn't it?

Mr. David Ginsburg: I think the --

Justice Felix Frankfurter: I -- I just want --

Mr. David Ginsburg: I have had more difficulty Mr. Justice Frankfurter formulating for myself, my recommendations to the Court as to what should be done with this case than I have with analysis of the case.

Justice Felix Frankfurter: -- (Voice Overlap) you're saying that a contentious judge particularly, you got at that lots of cases would say, ‘I am sorry Mr. Jones but I'm not going to take the time in eve because the statute circumscribe my -- the proceedings now before me nearly do ascertain identification --

Mr. David Ginsburg: This prob --

Justice Felix Frankfurter: Am I right?

Mr. David Ginsburg: That is correct.

Justice Felix Frankfurter: Alright.

Mr. David Ginsburg: But this problem Mr. Justice Frankfurter puts up before the Pennsylvania Supreme Court.

They had already held as West Virginia has held that notice was not required, but Judge Hastie's opinion came down in Collins and Claudy and the Supreme Court of Pennsylvania took the issue off again and found that impliedly a notice was required.

And if the blank -- if this Court concludes that the Blankenship case, the West Virginia Highest -- the decision in West Virginia which interpreted this statute to mean that notice is not required that if the Blankenship case is law then I am attacking the -- the constitution and the validity of this statute.

Justice Felix Frankfurter: But -- but --

Mr. David Ginsburg: But if they can -- and as I believe they will re-construe this provision to require a notice then I believe --

Justice Felix Frankfurter: Notice of what, because there was notice here?

Mr. David Ginsburg: There was notice, but it's a technical notice, in the sense that they had -- it wasn't an ample notice and there was no opportunity to be heard.

You Mr. Justice Frankfurter, are re -- are reading the statute in one -- one way.

I think it can be read that way.

I would hope that the Supreme Court of West Virginia would read it that way, but that's not what the court has done.

Justice Felix Frankfurter: I can assure you, I'm not reading it anyway at any moment except for the purpose of asking question.

As I understood you to say that the very -- the provision of the law nearly the man, the district -- to local judge, the West Virginia Judge to give to ascertain the identically --

Mr. David Ginsburg: That's correct Your Honor.

Justice Felix Frankfurter: -- to the man who is charged by a conviction and that if as an indulgent man, he says, “Alright, I'll just leave it to Mr. Jones,” but a perfectly conscientious judge could say, “I'm circumscribed by the statute” not to do this -- not to do anything in this case, except to ascertain identity and then automatically to impose this heavier sentence.

Mr. David Ginsburg: And I believe to be the law in the State of West Virginia, and that I believe is what actually done in the Oyler case.

Justice Felix Frankfurter: And if that -- if that is the requirement of the statute, I think you brought it back in the statute?

Mr. David Ginsburg: I am indeed sir.

Justice John M. Harlan: Could I go back to Justice Whittaker's question and to get clear in your position.

Take the Crabtree case, whether there was a plea of guilty.

Supposing in that case, Crabtree after his plea but before sentencing, given 10 days notice of the recidivist charge, would you still claim that the statute was -- and there was an unconstitutional act of notice because the notice had not been filed -- had been given him before the plea?

Mr. David Ginsburg: If coupled with that Mr. Justice, Crabtree was given an opportunity to withdraw his plea of guilty.

If he was given notice that the statute -- the habitual procedure would be applied against him and if he was simultaneously given an opportunity with -- to withdraw his guilty plea, I would see -- I would believe --

Justice John M. Harlan: Then your ultimate position is that the notice must be a notice prior -- prior to trial --

Justice Felix Frankfurter: What -- what is the Graham case points out and very often you don't know until after the fellow is convicted.

Mr. David Ginsburg: Then he should be given an opportunity as I recommend to this Court to withdraw his plea of guilty and I believe that he should be retried, on this --

Justice Felix Frankfurter: (Inaudible) does that imply that you think it's a necessary determination in the main case that the jury should determine the recidivist aspect of it --

Mr. David Ginsburg: No.

Justice Felix Frankfurter: -- and Graham says just the opposite.

Mr. David Ginsburg: I agree with Graham in this regard and I don't see that this must be determined or shouldn't be --

Justice Felix Frankfurter: Well then -- then what's the point of saying prior to his plea.

Mr. David Ginsburg: Because unless -- if he is also given an opportunity to withdraw his plea of guilty when he has knowledge that if he pleads guilty as Crabtree did.

Crabtree should not have been forced to plea -- to plead before he knew that if he pleaded guilty toward this -- to a forging at $35 check, he could be put away for life.

Justice Felix Frankfurter: So what do you do with Chapter 62 and that is discovered only after the man has been in jail two years?

Must then the whole proceedings be set aside?

Mr. David Ginsburg: In my view in the case of Crabtree in this particular proceeding, I believe that Crabtree should be given an opportunity to withdraw his plea and that he should be retried if he so chooses.

Justice Felix Frankfurter: But suppose the plea is not guilty and the (Inaudible) merits and he's convicted.

And the day after conviction, the State discovers that he has a record because he changed his name etcetera, etcetera, et cetera, points out to Graham, are there proper proceedings be set aside --

Mr. David Ginsburg: No sir.

Justice Felix Frankfurter: -- (Inaudible) going all over here.

Mr. David Ginsburg: In this kind of case where man has received the jury trial on the principle crime as he no reason whatever to --

Justice Felix Frankfurter: And then this is restricted merely to the plea of guilty?

Mr. David Ginsburg: Certainly, where a man has pleaded guilty on the application and if his plea will result in the application of the recidivist statute and a life sentence.

Justice Felix Frankfurter: Well, then would -- would the -- the recidivist aspect go before the whole jury?

Mr. David Ginsburg: No sir.

It's not certain -- not necessary as Graham -- Graham points out for the -- for the recidivist aspect to go before it.

Justice Felix Frankfurter: Are you suggesting that if he -- that he pled guilty on the assumption he could only get five years, but later he discovers that they tracked him down and found his prior to the record.

You say that that due process requires that he then he then given a run for his money before a jury and that the defendant's lawyer might pull the jury, is that it?

Mr. David Ginsburg: No.

This is not my position.

And -- and think it formulates it in one way that it can be, but I see no reason in the nature of things why a -- why due process shouldn't permit this man to be apprised that he has, that the statute is going to be applied against them before he pleads.

Justice Felix Frankfurter: What unfairness has there been up to the point that he pled guilty on a charge and I'm assuming all the other circumstances do not make put a case of due process, what unfairness requires that that proceeding be set aside that his plea of guilty be allowed to be, to be -- he was drawn for that reason.

I don't understand.

Mr. David Ginsburg: Before man pleads and there are many things in a -- as one sees in the criminal court that makes the man plea -- plead guilty or not guilty.

It maybe that he -- his talk with the prosecuting attorney, as we saw in one case which I've cited here in the Johnson case, led him to believe that there would be a certain type of sentence and he pleaded guilty.

That is the way justice is administered in the -- in the Courts -- in the States Courts.

Why should he not be given an opportunity to know what laws to be invoked against him before he pleads?

Justice Felix Frankfurter: Well, isn't unfair of me and I hate to think I was a cruel man, isn't unfair of me to say that that means, that he thought he was going to get five years because his file identity has been well-concealed, but now that he's informed of it, he wants to have another go at it?

Mr. David Ginsburg: It's one way of putting it sir and I certainly believe that a fair criminal procedure would require this man to be notified in advance of his plea that he has -- that this statute will be invoked against --

Justice Felix Frankfurter: I happened to think that it's very unfair to put it in the indictments.

Mr. David Ginsburg: I agree.

And it's -- and I agree with that aspect of the state -- of the procedure in West Virginia in the change, that is that the -- it's no longer to contain in the indictment, but he should be given notice.

There's one other --

Chief Justice Earl Warren: Mr. Ginsburg before -- before you go to another matter, in answer to Justice Harlan, I understood you to say that you would be satisfied for your petitioner if he had 10 days notice and if he had an opportunity to withdraw his plea.

Now --

Mr. David Ginsburg: In the case of Crabtree.

Chief Justice Earl Warren: And now, I wonder if you would be satisfied if you are limited as he was in this case under your -- under your theory, only to the defense of identity.

Would you not still -- would you not still insist that he have other defenses such as a pardon by the Governor or this other fact that the -- that he was not confined in a penitentiary?

You would -- in order to have due process you would insist that he'd be entitled to all those defenses would you not?

Mr. David Ginsburg: And to an opportunity for a hearing on the application of --

Justice Felix Frankfurter: Evidently, it was implied or can you say of the bearing of Graham on the question of Chief Justice just put because I'm not -- all these things and I'm not very sympathetic to the whole (Inaudible) of recidivist myself, that's beside the point, but the whole Graham case rests evidently that all that is -- was on the question of -- of determination of identity would the consequence of a life sentence pursued?

Merely, the determination of identity whether that -- that advice and determination out to a jury that -- whether that satis -- or not to an indictment et cetera as other (Inaudible).

I'm -- I'm going to look at the briefs in Graham.

But if then an underneath questions were stood in that, this whether.

Mr. David Ginsburg: I'm not sure sir as I've -- let me read to you a paragraph from Graham from Mr. Justice Hughes's opinion.

Full opportunity, he said, was accorded to the prisoner to meet the allegation of the former conviction.

Plainly, the statute contemplated that valid conviction which had not been set aside or the consequences of which had not been removed by absolute pardon which is this particular case, nor question -- no question as this can be raised here, for the prisoner in no way sought to contest the validity or unimpaired character of former judges repeated that he was not the person who has thus been convicted.

In Graham, the man contested the fact that he was the same man.

He was given a jury trial as to whether or not he was the same man and he was held by the jury to be the same man.

I don't think that Graham --

Justice John M. Harlan: That was the sole question that he raised.

Mr. David Ginsburg: That's was the exactly the -- that was the question that he thought was his defense.

Justice Felix Frankfurter: I could argue, I suppose the State will let him -- in this case, he had -- his lawyer had ample opportunity to open his mouth and he didn't.

Mr. David Ginsburg: Well, I don't see how the lawyer really could have opened his mouth then -- kept it open under the statute.

Justice Felix Frankfurter: I understand -- I follow that in a great clarity.

Mr. David Ginsburg: There is another aspect in the sense procedural due process has over waited here and that's the -- the problem of equal protection of the laws under a statute presumed to be a mandatory statute.

You'll find in the record a mass of data, accumulated as to show how this law has been applied in the State of West Virginia, and not only in the States of West Virginia but in Taylor County where in the case of Oyler and the other county in the case Crabtree.

983 men, during a 15-year period were subject to this recidivist statute.

Of those 9 -- 983, 79 were sentenced under the recidivist statute, 904 went free.

This is an extra ordinary thing under a statute presumed to be and criticized for being, mandatory in application.

One out of 11 men and my (Inaudible) indicates that it's only one out 11 men were put in -- were put away under the recidivist statute under a statute presumed to be mandatory.

At the State -- the legislature West Virginia has looked in to the matter, they commissioned Professor Brown of the West Virginia University Law School to examine the matter.

Brown -- I preferred to all of these details in the brief, Brown came out with the final result that this is one the most rigid laws in the country that has consequence of its rigidity, it has been disregarded in practice.

It has in effect been administered by whom, not the Courts. It's been administered by the County Prosecuting Attorneys.

Justice Potter Stewart: The difficulty is, that none of these materials was in the record (Voice Overlap)

Mr. David Ginsburg: Yes sir, it is.

Justice Potter Stewart: -- is it?

Mr. David Ginsburg: You'll notice that the -- the statistical data is all contain -- it was contained -- was filed with the West Virginia Supreme Court of Appeals.

It was in the habeas corpus petition, is -- it's before this Court here.

Now, this -- the exact statistical material which is contained here was also referred to by Professor Brown in his own study which -- which the Court I presume can take judicial notice.

Now, that the law's mandatory was unquestioned and it's equally unquestioned.

I submit that has been disregarded in practice and if 90% of the people subject to the recidivist statute go free and only 10% are subjected it, I submit to the Court that it has in this case a significant problem of the denial of equal protection of the laws.

The situation in the State is notorious and I believe that in practice, it's really outrageous.

Justice Felix Frankfurter: Showed that in practice but it isn't mandatory?

Mr. David Ginsburg: In practice, it isn't mandatory and this law ought to be amended if it isn't.

But if -- but the prosecuting attorney's for the counties ought not to be the once to determine the application of the statute which on its face it's regard as --

Justice Felix Frankfurter: Would that mean I don't have -- has not been attended at the moment.

Does that mean they don't bring the matters to the attention of courts or they do and courts do nothing about it if you got statistics on that?

Mr. David Ginsburg: No, it must mean.

It does mean.

Justice Felix Frankfurter: Well --

Mr. David Ginsburg: But they do not bring it the attention of courts.

Justice Felix Frankfurter: -- is that mean -- if that's an inference drawn by you?

Mr. David Ginsburg: No.

I've confined no evidence whatever Your Honor that the courts have disregarded an information filed by a prosecuting attorney, asserting the application of the recidivist statute would be an unbelievable thing.

Justice Felix Frankfurter: Does the -- well perhaps the Attorney General should laid on this --

Justice Potter Stewart: Mr. -- Mr. Ginsburg before you sit down, I have two questions, first of all on this matter to which you've just been addressing yourself.

If the statute instead of being in terms mandatory said that the prosecuting attorney may apply to this, that then you would have in statutory term which told us that the -- that isn't in fact the practice of West Virginia.

Mr. David Ginsburg: And it's also the language of the statute in the case of the Warden.

Justice Potter Stewart: Well, now aren't there -- aren't there many States where the statute is permissive?

Mr. David Ginsburg: Many States whereas permissive.

Justice Potter Stewart: That's more -- more usual, isn't it?

Mr. David Ginsburg: Much more usual.

Justice Potter Stewart: And so therefore, this practice is simple in conforming in practice to what the statutes of the other States say, is that it?

Mr. David Ginsburg: In disregard of the -- of the terms of the statute.

Justice Potter Stewart: So we're faced here if you're right as to this practice where we have then just --

Mr. David Ginsburg: An equal protection probably now.

Justice Potter Stewart: We have -- we have the equivalent of -- of a statute of which says by this constitutional question goes we have an equivalent of the statute which says the prosecutor may instead of must.

Isn't that correct to the constitutional point of view?

Mr. David Ginsburg: Well, here is the man -- is this not the problem before the Court in ever case where an equal protection is asserted to be denied?

Here a criminal in jail, 79 out of 983. 904 have gone free so far as concerns the statute.

The 79 have been put away on what basis, who was making the law?

This -- these prosecuting attorneys are making the law in the State of West Virginia.

Justice Tom C. Clark: There are so many factors though.

They may not have known of the prior convictions.

Mr. David Ginsburg: Well, there are --

Justice Tom C. Clark: (Inaudible)

Mr. David Ginsburg: -- the date is set forth in the record sir and I will arrest on that.

It's very clear that they did know, they do know and it's very clear that this is a problem to --

Justice Tom C. Clark: But West Virginia said about it, I mean the Supreme Court?

Mr. David Ginsburg: Well, this problem has not been -- the problem of equal protection was asserted, was allege was contained in the habeas corpus application which was submitted to the Supreme Court, but there was no opinion.

I --well, just one word that it's not -- I'm not asserting here that these men will go free that is at either due process has been denied here, procedural due process or equal protection.

What well happen then is that these men will be resentenced by the trial court for the original crimes, in the one case for second degree murder and the other case for the crime of forgery.

It's not that they will go free.

The problem is the enhanced punishment by reason of the application of the recidivist statute.

Justice Potter Stewart: I want to be sure Mr. Ginsburg before you sit down that I understand what it is that these people now assert they could have brought before the sentencing court?

Mr. David Ginsburg: Well, in the case of Oyler.

Oyler said that I should have been permitted to tell the trial court that I was never in the penitentiary before.

Justice Potter Stewart: Now, isn't that problem, not ambiguity between 18 and 19 completely resolved by this Skeen case or the Keen case or whatever it is?

Mr. David Ginsburg: Well, I'm not sure whether it is, because in that case -- you see, there is a distinction in my mind of court between a jail and the -- and a reformatory.

And the one came that under the law of West Virginia reformatory is not even the penal institution even tough confinement is involuntary.

The cases are collected in the brief and I should think that the matter of this kind would be argued before the Court.

That -- I can concede.

You see in the Johnson case that a jail penitentiary -- a county jail is contest over the States penitentiary could be assimilated.

But to assimilate a -- is there -- when a man, let's say right -- child is sent to a -- young man sent a reformatory school, does that to be simulated to the penitentiary?

Justice Potter Stewart: No, we -- but in -- in the Keen case, if I have the name right, Keen isn't or Skeen?

Mr. David Ginsburg: John --

Justice Potter Stewart: Skeen case.

Mr. David Ginsburg: Well, Skeen --

Justice Potter Stewart: That was (Voice Overlap) Skeen.

Mr. David Ginsburg: -- the Warden at that time.

Justice Potter Stewart: It wasn't on that basis of the -- that the West Virginia Court decided it. It was on the basis that 18 was controlling overnight.

Mr. David Ginsburg: I agree and I -- I said at the time that during my argument, I believe that was a wrong result, but I believe -- and I believe they should have argued before them the -- this issue, that issue or issues of this kind.

Justice Potter Stewart: Now is that sole issue that -- that Oyler says he would -- could have brought before the Court?

Mr. David Ginsburg: No.

Oyler of course raises the problem of a -- I mean under the statute?

Justice Potter Stewart: Yes.

Mr. David Ginsburg: That is the issue which Oyler presently asserts he could have raised under the statute.

Justice Potter Stewart: And how about Crabtree?

Mr. David Ginsburg: Crabtree points to errors in the information.

The error between -- Yakima and Walla Walla.

And -- but both raise -- the men raised of course what I believe to be these great constitutional questions.

Justice Potter Stewart: Well, I was wondering --

Mr. David Ginsburg: Certainly procedure in due process --

Justice Potter Stewart: -- understanding to raise those if they not so that they were prejudiced here.

Mr. David Ginsburg: Yes.

Well I've -- it's not conceivable to me that they would -- could not raise as a federal matter in a petition for habeas corpus alleging the invalidity of the statute, because the statute denies them the opportunity -- the ample notice and an opportunity for a hearing on these issues.

Justice Felix Frankfurter: I can -- I can see how the Walla Walla -- the difference in the counties act there in identification.

Mr. David Ginsburg: Could conceivably.

Justice Felix Frankfurter: The party (Inaudible) --

Mr. David Ginsburg: Yes.

Justice Felix Frankfurter: -- but if the custom identification is now pertinent what (Inaudible) could it have apart from -- I always concede that your statutory point be different from once you talked a lot of (Inaudible)

Mr. David Ginsburg: Your suggestion sir, bear on the issue of harmless error, that there maybe error in the record by it's harmless.

My point is that they should have had an opportunity to argue to the Court what the merits of those issues were.

And it's the lack of opportunity to reach the Court, to discuss the matter with the Court that I'm complaining about here and I believe that that's the essential issue in the case.

You may have five minutes more to wish to respond and of course, Mr. Mitchell may have -- you have (Inaudible) time.

Mr. David Ginsburg: Thank you sir.

Chief Justice Earl Warren: Mr. Mitchell, you may now proceed with your argument.

Argument of George H. Mitchell

Mr. George H. Mitchell: Mr. Chief Justice, may it please the Court.

The counsels for petitioners have stated the fact substantially.

Petitioner Oyler was indicted for murder by the grand juries of the Circuit Court of Taylor County West Virginia at it's Jan -- January 1953 term, he was arraigned and as his request court-appointed counsel to assist him in his the defense.

He then entered the plea of not guilty and his case was sent for trial.

The trial was held and the jury found him guilty of murder in the second degree.

At that time, it's pointed out counsel for the petitioner.

The petitioner here moved the Court to set aside the verdict and grant new trial, the Court during that time for counsel to assign his ground in support of the motion.

Approximately one week later after the verdict of the jury was received, the Court overruled the motion for a new trial and at that time, (Inaudible) the prosecuting attorney then counted that information, set and forth in writ -- this information was in writ, they filed a writ, set and forth three previews felony convictions of petition -- petitioner Oyler in the Court for (Inaudible) session of the piece in the county of Bedford, in the Commonwealth of Pennsylvania, on the charge of (Inaudible) larceny of automobile, breaking and entering burglary.

The order of commitment in connection with petitioner Oyler states that after being duly cautioned as to the effect thereof, he acknowledged in open court that he was the same person named in the information.

And thereupon, the Court proceeded on the -- on the habitual criminal statute to sentence the petitioner Oyler to confinement in the -- in the penitentiary of the State for life.

Chief Justice Earl Warren: Mr. Mitchell may I -- may I ask you at this time if there is any defense open to the defendant on habitual criminal charge other than that of identity?

Mr. George H. Mitchell: Under our statute -- the -- the prisoner given opportunity, he is duly caution as to the effect of saying that he is the same person.

And the --

Chief Justice Earl Warren: That's the question of identity.

Mr. George H. Mitchell: Yes.

Chief Justice Earl Warren: Alright.

Mr. George H. Mitchell: And -- if he says that he is not the same person, a jury must be empanelled to try the question of identity to determine whether or not he is the same person.

And if he acknowledges after being duly cautioned, the court sentences him.

Now is practice then a question has been raised and continue to say have been granted.

Chief Justice Earl Warren: I beg pardon?

Mr. George H. Mitchell: Continue to say have been granted it so that this question can be determined.

I am the person referred to in this information, but I was pardoned by the Governor of Pennsylvania because he found I was innocent and my -- my other conviction was voided by the courts because they found that it was -- I was unconstitutionally convicted, but I -- but I am the person was who mentioned in that information,” can he raise those questions?

Mr. George H. Mitchell: He can raise those questions.

If he didn't -- well, let's go back, if he denied that he is entitled to a jury trial and the State must then put on evidence.

Chief Justice Earl Warren: No, no, that isn't what I'm talking about.

He admits that he is the person referred to in those -- in the information.

Does that end his defense or does he have other defenses such as he had received a full pardon from the Government because of his -- because of his innocence or he had had his other conviction reversed because he was unconstitutionally convicted?

Can he raise those -- those issues if he admits his identity?

Mr. George H. Mitchell: Yes, he could raise those issues.

Chief Justice Earl Warren: Alright.

Now, what law of your state gives it?

Is there a statute concerning that or is that interpretation of your Supreme Court?

Mr. George H. Mitchell: Then -- the Court has -- not rules specifically on that.

Chief Justice Earl Warren: Alright.

Mr. George H. Mitchell: And we have observed it in practice.

Chief Justice Earl Warren: You what -- you what?

Mr. George H. Mitchell: It had been observed in practice that you can raise any question that has to do with whether or not the conviction is proper one to sustain the application of the habitual criminal law.

Chief Justice Earl Warren: Well, under what statute do you do that?

Mr. George H. Mitchell: We have no specific statute on that sir.

Chief Justice Earl Warren: And how -- how frequently has that been done in practice --

Mr. George H. Mitchell: (Voice Overlap) very infrequently.

Chief Justice Earl Warren: I beg pardon?

Mr. George H. Mitchell: Infrequently.

It's not been frequent.

Chief Justice Earl Warren: Do you then in your knowledge have in mind any cases where it's done?

Mr. George H. Mitchell: I have observed several in the -- in immediate court into North County where it has been raised and if -- the prisoner was permitted to show this discrepancy or whatever merit was that would show that he -- the conviction that was being set forth was not a proper one or application under habitual criminal statute.

Justice Felix Frankfurter: You use to answer Mr. Chief Justice that it -- as a matter of practice, he's allowed to interpose considerations other than lack of (Inaudible) and mis-identity.

I think you said --

Mr. George H. Mitchell: Yes.

Justice Felix Frankfurter: -- practice.

But I want to know you've also said there is no decision dealing with it.

Is there any reference in any -- in any opinion, either by the lower court or by your Supreme Court?

Is there any statement in Crabtree which reflects that practice?

Is there any statement?

I don't mean an adjudication but very often, judges in writing, state as the matter of fact, reference so to the fact under this State.

Do you recall any such reference shorter than actual adjudication?

Mr. George H. Mitchell: No Mr. Justice Frankfurter, I do not.

Justice Felix Frankfurter: Now what I looked at the briefs as -- has talked to Mr. Ginsburg in the Graham case and the Graham -- Graham was -- the case was argued here, on the brief there is -- one of the (Inaudible) lawyers of this day Mr. Frank Holden and he takes it for granted.

I'm not suggesting that that's controlling law but (Inaudible) shed some light in this groping darkness and in that brief that it said, “The only defense opened in West Virginia is identical,” the issue of identification.

As I say that -- that goes no more than accounts a statement.

It is interesting to me that none of these questions was raised in that case.

Maybe there's no basis for raising any.

The Graham case went entirely in challenging the method for determining identity namely, by way of information against in your State, you have to have an indictment (Inaudible) felony.

Mr. George H. Mitchell: Yes.

Justice Felix Frankfurter: I'm just groping to see whether there's anything in any legal, in any weighty pronouncement by any judge that as a matter of practice, Mr. Hogan was wrong in saying the only defense is to establish identification.

Mr. George H. Mitchell: Not and think of no -- not in publish to that effect.

Justice Felix Frankfurter: But you speak out of you own experience.

Mr. George H. Mitchell: Yes sir.

Justice Felix Frankfurter: You've been -- you've been in the Justice Department of the State of West Virginia, how long Mr. Mitchell?

First of all and I'd like to say that I don't want to give the impression that I'm attempting to read something into the statute that does not exist.

I agree fully with the holding in the Graham case that the proceedings under the statute are for identification only and I know of no reported cases in West Virginia where the question was raised as to whether defense, especially the one suggested by Mr. Chief Justice Warren, if interposed whether it should be considered or not at the hearing.

I know of no reported case that says it should be considered.

Justice William O. Douglas: Suppose the -- the man who's up under the statute has been convicted, say three times, and one of those times or two of those times or three of those times, he did not have a, say lawyer, as our decision in Betts and Brady requires in certain, at least in certain types of cases, would that be triable on this -- under the statute?

Mr. George H. Mitchell: As I just stated, I know of -- Mr. Justice Douglas, I know of no cases, reported cases in West Virginia where they have allowed a defense where the --

Justice William O. Douglas: (Voice Overlap) --

Mr. George H. Mitchell: -- defense was interposed --

Justice William O. Douglas: Yes.

Mr. George H. Mitchell: -- and it was tried --

Justice William O. Douglas: Suppose this, and suppose you were there representing the state and Mr. Ginsburg was there representing this man and Mr. Ginsburg steps forward and offers that in proof.

Would you object or would you say this is triable?

If those four -- those prior three convictions were all voidable or unconstitutional or whatever you want to call them could be attacked say by habeas corpus because of the deprivation of a constitutional right, would you say that they nevertheless would be foreclosed that this man could go to prison for life on the basis of three judgments in which he had no lawyer, no one to defend him and constitutionally was entitled to a lawyer in those three cases or in one of those three cases or in two of those three cases.

I realize that isn't quite this case but I kind of get your idea of what this statute does and does not do.

Mr. George H. Mitchell: Well, under the statute, I think it's limited to a question of identification only but as I have stated before, in practice, it's possible that the judge in order to determine whether or not the conviction was proper, it might here.

Chief Justice Earl Warren: As I understand it, under the statute (Inaudible) controversy under the insinuation, surely he's entitled to know the issue, who will decide it under the facts you say (Inaudible) -- making sure they decide that question or (Inaudible)?

Mr. George H. Mitchell: The jury would decide.

They would decide whether -- well, they're only entitled under the statute to decide whether he is the person named in the information.

Chief Justice Earl Warren: Yes.

Mr. George H. Mitchell: That's all.

Chief Justice Earl Warren: I recognized and I suppose in addition to that, the range of decisions that you say can be raised according to the (Inaudible) by the highest court.

Suppose it was an issue to identity and he raise the question of (Inaudible) in the statute to be raised only before a jury and would he (Inaudible) be limited only to the identity.

Mr. George H. Mitchell: It would be a question of admissibility for the judge and I would think that under the statutory proceeding, it would not be a question for the jury if he -- it could raise the question on a writ of error if he denied the right to interpose this defense but it is my firm belief that in accord with the Graham case that only those questions that go to the identification of the prisoner are the ones that make it to the jury.

Chief Justice Earl Warren: What in fact was (Inaudible) is whether we can assume that the wrong in West Virginia is that a man in this situation, (Inaudible) is limited to the question of identity.

Mr. George H. Mitchell: I think --

Chief Justice Earl Warren: How do you want us (Inaudible)?

How do you want us to deal with your law of West Virginia? Did he (Inaudible) to contesting identity or his (Inaudible) in some matter or form the opportunity raised in the defense?

Mr. George H. Mitchell: At this particular proceeding, it is my thought and I think that the law of West Virginia is that this limits to the question of identification.

Justice Tom C. Clark: (Inaudible)

Mr. George H. Mitchell: Under the statute, Mr. Justice, if he says that he is not the person, then it's incumbent upon the state to put on evidence to the effect that he is (Inaudible).

Justice Tom C. Clark: They tried it on the merits.

Mr. George H. Mitchell: Yes.

Justice Tom C. Clark: (Inaudible)

Justice Hugo L. Black: (Inaudible)

Mr. George H. Mitchell: I think then we'd come on the writ of error.

Unknown Speaker: You mean here?

Mr. George H. Mitchell: Yes.

I don't think he could raise them at this particular proceeding.

Unknown Speaker: How could he raise (Inaudible) error in the record to support it?

Mr. George H. Mitchell: The cases that we've been confronted with have come up on the writ of -- applications for writ of habeas corpus whether this -- where there was any question as to whether or not the conviction was one that was sustained the additional punishment under the habitual criminal act.

Unknown Speaker: (Inaudible)

Chief Justice Earl Warren: Very well.

Mr. George H. Mitchell: I see this.

Justice Tom C. Clark: (Inaudible)

Mr. George H. Mitchell: That's true.

I stated that Your Honor and I also stated that --

Justice Tom C. Clark: (Inaudible)

Mr. George H. Mitchell: According to the -- our reported cases, the only question that can be raised at this proceeding is the question of identification.

Justice Felix Frankfurter: Then you agree to (Inaudible) that what he is challenging (Inaudible) I think is constitutionality of the statute namely (Inaudible)

Mr. George H. Mitchell: Well, the Circuit Court sir.

Justice Felix Frankfurter: (Inaudible)

Mr. George H. Mitchell: That's right sir.

As it had been pointed out by counsel for the petitioners, they say first that they were deprived of due process of law because they were not given notice that an information would be presented setting forth a prior felony conviction.

Our Supreme Court of Appeals has held in State against Blankenship, a 1952 case reported in 137 West Virginia, page 1, that in as much as a procedures set forth in the statute does not constitute a trial of prior offenses, no notice is required before presenting the bill of information to the Court.

As I understand due process, the primary purpose of affording a defendant notice is to inform him of the charge against him, and to give him a reasonable time in which to prepare his defense.

And it is our contention that such a reason for notice does not exist in this type of cases wherein we are concerned with the application of the habitual criminal act because this is not an information of an offense for which a trial has to be had, but is an information to ascertain the fact that is namely that the prisoner has already been previously convicted of offenses and this fact must appear either by his own confession or by a verdict of a jury before he can be sentenced to the additional punishment prescribed in the statute.

He's not sentenced for an offense distinct from the one from which he has been tried, but the only question is whether he is such a person as ought to be sentenced to the additional punishment and in that relation, we compare with the finding in the Graham case wherein we say that the proceedings under the statutes are for identification only.

They are clearly not for the establishment of guilt.

The question of guilt does not reopen at all in this type of proceeding.

Chief Justice Earl Warren: That mainly proceeds on the assumption that the -- in the State of West Virginia (Inaudible)?

Mr. George H. Mitchell: We would like to show that no formal notice was such is given for trial.

Chief Justice Earl Warren: I beg your pardon?

Mr. George H. Mitchell: There's no formal notice such as a notice that is given for the trial, but we would like to show that the prisoner, the petitioners were amply notified that they were being proceeded against as habitual offenders under our statute.

Chief Justice Earl Warren: But aren't the facts that you rely on different to those outlined by Mr. Ginsburg?

Mr. George H. Mitchell: No, the facts was -- there's no dispute as to the facts.

Chief Justice Earl Warren: I beg your pardon?

Mr. George H. Mitchell: There's no dispute as to the facts of the case.

Justice Charles E. Whittaker: What do you mean then if I may ask by saying he would like to show that these men were given notice that they were to be informed on under this (Inaudible)

Mr. George H. Mitchell: What I think I said Mr. Justice Whittaker is that they were amply notified that they were being proceeded against as habitual offenders.

Justice Charles E. Whittaker: By the information?

Mr. George H. Mitchell: Yes.

Justice Charles E. Whittaker: What do you say for Mr. Ginsburg (Inaudible) notice in the facts of their plea in the principle of a criminal case?

Mr. George H. Mitchell: It is not so absurd that in this type of proceeding, due process does not require that notice be given in the same form as in a trial of a case.

In relation to Mr. Ginsburg's position there that notice should perhaps be given prior to the trial of the case, I don't see how it would be feasible.

Under our statute, it says after conviction, immediately after conviction, and before sentencing, the prosecuting attorney must file an information setting forth the previous convictions.

To give him notice that he would be almost assumed that he would be found guilty, he'd be convicted, but the statute anticipates a proceeding after conviction and before sentence.

Justice Felix Frankfurter: But you wouldn't (Inaudible) even into these case (Inaudible) --

Mr. George H. Mitchell: Their procedure sir?

Justice Felix Frankfurter: Let me think about it, (Inaudible), I can assume here (Inaudible) what happens in this case, the district attorney having seen the information, soon after the conviction (Inaudible) --

Mr. George H. Mitchell: No sir, no Your Honor.

Justice Felix Frankfurter: That would've been this case.

Mr. George H. Mitchell: No, Your Honor.

Justice Felix Frankfurter: (Inaudible) the case here, (Inaudible) rather what was done, it was made (Inaudible) but there they are, the accused and his lawyer and the judge (Inaudible).

The judge asks him, do you understand it?

He says he does (Inaudible), that's all I ever asked.

(Inaudible) anything after the act you need to say (Inaudible) -- whether that court decision tends to be (Inaudible) --

Mr. George H. Mitchell: It is our position that it does not.

That -- this was --

Justice Felix Frankfurter: And from your (Inaudible) that issue was not all over you, you must have had known, this is on the (Inaudible) a question of fact whether he was (Inaudible), that's all in the trial, and not to assume what (Inaudible) on the basis of (Inaudible).

Mr. George H. Mitchell: That's true sir.

Justice Felix Frankfurter: (Inaudible)

Justice John M. Harlan: Could the judge have granted an application?

Did he have power to grant an application had it been made for an adjournment, the defendant having permitted his identity?

Mr. George H. Mitchell: A contingence could be had if it did not extend beyond the term.

The statute says that this information must be filed after verdict, before sentence and within term, within the same term of court.

That's perhaps one of the reasons why they have a statute that gives the same authority to the warden.

If a prisoner comes there and has not been sentenced under the habitual criminal act in the trial court, he may file an information setting forth his previous convictions.

Justice Charles E. Whittaker: But that statute would be void, would it not if Mr. Ginsburg is right in his contention that there must be notice given to this man of the intention to proceed against him under this habitual offender statute before the information or indictment is returned?

Mr. George H. Mitchell: Yes it would be void too.

It will be also if this particular statute as we are discussing now would be considered that would be determined to be unconstitutional as like in a notice.

Chief Justice Earl Warren: What could -- would the -- what could (Inaudible) if a man said yes, I am the person but those convictions have been wiped out (Inaudible).

What could you say (Inaudible) a continuance as long this wasn't beyond the term.

What would you then -- what could be the continuance assuming the -- if he finds the man but he had other defenses to the charge.

Mr. George H. Mitchell: Well it wouldn't do him any good if the question was any other than -- any other than the question of whether or not he's the same person.

Chief Justice Earl Warren: But could I also get back to the (Inaudible)?

Mr. George H. Mitchell: In both of these cases as the records reveal that prisoners upon being informed of their prior convictions were given the opportunity to say whether they were the same person named in the information and they were duly cautioned as to the effect of admitting their identity, nevertheless, both readily admitted that they were the same persons and were consequently sentenced to life imprisonment under the statute.

In discussing this matter of notice the petitioners in their brief and in the argument have relied heavily on decisions from Tennessee and from the Third Circuit, in the court -- in the case Rhea against Edwards, a Tennessee case, which mention was made in our brief on page 6, the Court there held that since the Tennessee Habitual Criminal Act as interpreted by the Tennessee Supreme Court did not require that notice before trial be given a defendant who is to be sentenced under the act has violated the due process.

Now those cases can be readily distinguished from the cases now before this Court.

As pointed out in our brief and under the Tennessee statute that was in effect at that time it states that when a habitual criminal as defined in Section 1 of this Act, as charged by presentment on indictment by the commission of several enumerated felonies, he may also be charged in this same indictment with being a habitual criminal as defined in Section 1 or he may be charged only with the commission of such felony but in either case shall upon conviction be sentenced and punished as a habitual criminal.

Under Tennessee statute, it was possible as it happened in the McCummings cited in our brief, it is possible for a prisoner to go to trial and then the district attorney announced at the trial that he was going -- he is -- in addition to being tried for a specified felony, that he would also be tried as a habitual criminal.

Now under the West Virginia statute that's not possible.

Our proceeding is a separate proceeding and there's no question, once the information is filed as to what the proceeding is about that the offender is to be punished if he is found to be the same person named in the information as a habitual offender.

In the Pennsylvania case cited by the petitioner, Collins against Claudy, a situation existed there that could not exist in our statute.

In that particular case, Collins had been indicted for breaking and entering a store and stealing certain sum of money.

He pleaded guilty and was sentenced to a term from five to 20 years.

His sentenced reheard.

The court sentenced a rehearing that it was pursuant to the act of assembly approved April 29th, 1929.

This was a reference to the Pennsylvania habitual criminal act.

At no point -- no stage during the proceeding that Collins knew that he was being dealt with as an habitual offender.

That cannot happen once again as I pointed out because on our statute, the ascertainment whether or not the prisoner here is a habitual offender.

It is done in a separate proceeding and is not done along with the trial shall we say.

Under the Tennessee statute that was in effect then, he was tried at the same time for being a habitual criminal and for the felony that he had committed and the jury, the same jury that tried him for the offense determined whether or not he was a habitual criminal.

That cannot happen under the West Virginia statute.

We say that those holdings are distinguishable from the cases now before this Court for that reason because I thought that the West Virginia procedure provides to a defendant ample notice that he is being dealt with as a second or third offender as the case may be and he has opportunity, sufficient opportunity to contest his identity as to whether or not he is that person.

Justice John M. Harlan: What do you -- what do you think, assuming you are right for the moment that notice is not required beyond what was given here in both of these cases, what do you say as to the effect of that procedure on the question of inducing pleas of guilty by people who have before them the prospect of the recidivist charge which they know about but which the state did does not notify them about therefore they plea in order to hopefully presumably avoid the possibility of a recidivist charge and they turn out to be wrong?

Mr. George H. Mitchell: Mr. Justice Harlan that has been referred to by Mr. Ginsburg in connection with Mr. Brown's article, they call it, bargain justice.

Justice John M. Harlan: Well, it's just a question of bargain and maybe no negotiations at all.

The man knows he's possibly faced with such a charge.

He hopes that the state doesn't know about it.

He therefore pleads guilty.

He had the notice and he knew that he's going to be charged anyway he might not be in trial.

Mr. George H. Mitchell: Well, I really think that the -- is the question that the prisoners make and his attorney must make.

I don't think that that should enter too much into whether or not this procedure here is proper or can be sustained.

Maybe I don't have your question correctly.

Justice John M. Harlan: I see you might have some bearing as to whether due process does or does not requiring of it.

If the absence of the kind of notice that Mr. Ginsburg is arguing for might produce the kind of result I've indicated.

I don't know whether it's true or not.

Mr. George H. Mitchell: Well if he entered a plea of not guilty and the jury still found him guilty, he would be subjected to -- to the same type of punishment the additional penalty.

Justice Charles E. Whittaker: Well could this scheme -- could this scheme was that he did have in mind what Mr. Justice Harlan has just averted to?

If this Section 4 of Article VIII Section -- Chapter 62 is a valid statute as set -- one set forth in petitioner's brief at page 38 that gives the warden a right to (Inaudible) to advise the Court to -- that the government prosecutor could leave -- file information to proceed against him?

Do I make it clear?

Do you understand me?

Mr. George H. Mitchell: Are you asking that should he not be sentenced as a habitual criminal in the lower court, in the trial court, could he not when he enters the penitentiary still be proceeded against?

Justice Charles E. Whittaker: (Inaudible) Mr. Justice Harlan presupposes that one charge with the principal offense in your courts knowing of his own background but that the prosecutor thought that doesn't know of it, will plead guilty in the hope that he will just be given a single sentence not taking into account his past act -- sentences.

Well could that scheme ever work fine if the statute I'm referring to that sets forth on page 38 at Mr. Ginsburg's brief is a valid statute?

Mr. George H. Mitchell: It would not necessarily work because he could be proceeded against after entering the penitentiary.

It's discretionary with the warden under the statute as to whether or not he wishes to file this information.

Chief Justice Earl Warren: Mr. Mitchell, if they sentence this man for (Inaudible) and file this information, (Inaudible) and if he does not do so in 90% of the cases that is (Inaudible), but if the 10% of the cases in which the information is violative after the (Inaudible) cases where the man said he was not guilty and in fact the (Inaudible) guilty were so charged with that information.

Would you not (Inaudible)?

Mr. George H. Mitchell: If those were the facts, it's possible that you would have --

Chief Justice Earl Warren: What are the facts?

Mr. George H. Mitchell: The -- in these two cases now before us, the petitioners had not been able to show that intentional and purposeful discrimination.

They cannot get -- they cannot get themselves into the class that you are describing or the class that Yick Wo was in because that was based on race.

Chinese, Yick Wo is Chinese and you have a -- in your example all the people who were sentenced were those who pleaded not guilty and were tried under but our petitioners here cannot get themselves into that class.

They cannot show the intention or -- and purpose for discrimination necessary to show an evasion of the equal protection.

Chief Justice Earl Warren: (Inaudible) Yick Wo is not also those who claimed he's not guilty and put the stake the (Inaudible), isn't that an arbitrary classification?

Mr. George H. Mitchell: That could be that -- if they could show that but then the two --

Chief Justice Earl Warren: (Inaudible) -- if it did -- if the record did show, there were a mass of cases where --

Mr. George H. Mitchell: You would have a -- that type of case that -- but then these -- in these two particular cases, one had a trial and one pleaded guilty --

Chief Justice Earl Warren: (Inaudible)

Mr. George H. Mitchell: Both -- yes.

But if you could find that basis for a class, you would have that again --

Chief Justice Earl Warren: (Inaudible) -- I probably have in mind some other cases we have in West Virginia where that (Inaudible) plead not guilty but the fact that we -- all and the others are permitted to serve their clients (Inaudible) charge filed against them.

Mr. George H. Mitchell: I don't think they'd be able to substantiate that but were it true, I think you could find that basis for classification.

Chief Justice Earl Warren: (Inaudible)

Mr. George H. Mitchell: No, it did not sir.

Along with the question raised by Mr. Chief Justice, the petitioners contend in their brief and in their petition that they were denied equal protection of the laws and equal justice by the state of West Virginia because the state's habitual criminal law was being administered by an unequal hand and has been stated here this morning, in support of this allegation, the petitioner's quote extensively from several studies made of the West Virginia habitual law -- habitual criminal law with special emphasis being placed on those facts that tend to indicate that it's somewhat being applied in a discriminatory manner.

Now, we are not certain how accurate the surveys are but we are -- and we do say that the allegations contained in the two petitions then before this Court insufficient in showing the purposeful and intentional discrimination necessary and essential to show an invasion of the constitutional right to the equal protection of the law.

They do not -- they cannot put themselves in a class as the certain group of people being discriminated against.

Justice Felix Frankfurter: (Inaudible)

Mr. George H. Mitchell: To my knowledge there has been -- a bill was introduced in the legislature following them instead but not by the committee, it was not a committee-drawn bill.

Justice Felix Frankfurter: (Inaudible)

Mr. George H. Mitchell: No, they did not sir.

A bill was introduced but it was not by -- they're committed by one of the delegates and did not pass.

Justice Felix Frankfurter: (Inaudible)

Mr. George H. Mitchell: That's right.

Justice Felix Frankfurter: (Inaudible)

Mr. George H. Mitchell: Not to my knowledge.

There have been no published reports following that study, commenting on one way or the other officially.

Justice Felix Frankfurter: (Inaudible)

Mr. George H. Mitchell: I'm not able to say exactly but it's my understanding that it resulted from -- for someone risks to being shown among the prisoners as to the manner in which the law was being applied.

Justice Felix Frankfurter: (Inaudible)

Mr. George H. Mitchell: Someone risks or --

Justice Felix Frankfurter: (Inaudible)

Mr. George H. Mitchell: But it --

Justice Felix Frankfurter: (Inaudible)

Mr. George H. Mitchell: But that's as far as it's got.

It was then before (Inaudible).

Justice Felix Frankfurter: (Inaudible)

Mr. George H. Mitchell: It was to make it discretionary as I recall it.

See, it's now mandatory with the prosecuting attorney.

Justice Felix Frankfurter: (Inaudible)

Mr. George H. Mitchell: No, they cannot, sir.

Chief Justice Earl Warren: (Inaudible) require the district attorney to file the information (Inaudible) after a hearing whether the man is to be treated as a habitual criminal or not.

Mr. George H. Mitchell: I think that would help considerably.

As I state it's nothing been officially -- no official view has been taken since this study.

No one has shown any real interest in amending the act or changing it.

Justice Felix Frankfurter: (Inaudible)

Mr. George H. Mitchell: 22.

Justice Felix Frankfurter: (Inaudible)

Mr. George H. Mitchell: They all have criminal jurisdiction but in several --

Justice Felix Frankfurter: You mean, all of the --

Mr. George H. Mitchell: -- several of larger counties there in jury courts who handle only, statutory courts -- of courts who only -- who handle only criminal cases.

That's in some --

Justice Felix Frankfurter: (Inaudible)

Mr. George H. Mitchell: He's on appeal that -- there's a (Inaudible) in the larger -- in the larger counties, they may have separate courts who have inferior courts, who handle only the criminal cases.

Justice Felix Frankfurter: How many judges in West Virginia in number, how many judges exactly (Inaudible)?

Mr. George H. Mitchell: Well all the judges who preside over these courts.

Justice Felix Frankfurter: 20?

Mr. George H. Mitchell: Yes, 20 or 30.

Justice Felix Frankfurter: 20 or 30.

Mr. George H. Mitchell: And then there are inferior courts who -- they have the power to decide.–

Justice Felix Frankfurter: (Inaudible)

Mr. George H. Mitchell: Yes, they did.

Justice Felix Frankfurter: (Inaudible) have the same view regarding (Inaudible) whether its is long distance or short distance (Inaudible) --

Mr. George H. Mitchell: No, I don't think they all have the same views.

Justice Felix Frankfurter: (Inaudible)

Mr. George H. Mitchell: That's right.

That's right.

Justice Felix Frankfurter: (Inaudible)

Mr. George H. Mitchell: That's possible.

Chief Justice Earl Warren: (Inaudible)

Mr. George H. Mitchell: That's true.

Chief Justice Earl Warren: Usually decided by judge and not by a district attorney who filed one information out of 11 which were the facts (Inaudible).

Mr. George H. Mitchell: You would also run into this problem which exists now as far as the prosecuting attorneys are concerned, the statute says that if he has information, if he has knowledge --

Unknown Speaker: (Inaudible)

Mr. George H. Mitchell: -- you might run into this problem which we all -- which we have now.

The statute says if he has knowledge of these previous convictions, he is, he shall file the information.

Whether he has knowledge or not is often -- is often hard to determine.

Sometimes he does not have it and most of the prosecuting attorneys cooperate with the Criminal Identification Bureau of the state police and they provide, they can provide them, if they have the information in this -- in previous offenses.

Then too the requirement in the statute is that it must be done within term.

If it so happens that you get some case near the end of the term, you may not have time to file the information, get the necessary information to file it.

Justice Felix Frankfurter: (Inaudible)

Mr. George H. Mitchell: In the smaller counties, you will find that your prosecuting attorneys are may be very much part time and the police force -- well they have a very small space.

As a matter of fact if one has to write us about getting enough money to have a station there or anything in his office.

It depends on the size of the counties.

More or less, in smaller counties, they do have a difficulty of making proper investigations and actually of devoting their time to the office.

Justice Felix Frankfurter: (Inaudible)

Mr. George H. Mitchell: Whether he broke them, I don't recall exactly as to whether or not he broke them down to filing the information during in a year but he did break down the sentencing under our habitual criminal act.

Justice Felix Frankfurter: (Inaudible)

Mr. George H. Mitchell: That may have been in the -- not in his article.

It's probably in his research but it was not in his article.

Justice Felix Frankfurter: (Inaudible)

Mr. George H. Mitchell: It was probably on file with the permission in this committee.

Justice Felix Frankfurter: (Inaudible)

Chief Justice Earl Warren: (Inaudible)

Mr. George H. Mitchell: I will sir.

That's -- whatever information is available to the -- that's filed with the committee, that's a --

Justice Charles E. Whittaker: Mr. Mitchell, I would like to know how if an accused was brought before this Court and the prosecutor presented several certified copies of past convictions and sentences, but one or more of them appear obviously to be subject to collateral attack for one reason or another, how is this man ever to have a hearing on that aspect of the case under your law?

Justice Charles E. Whittaker: Would that mean he's got to go to prison for life just because you haven't got a procedure whereby you can show one or more judgments were void?

Mr. George H. Mitchell: Well habeas corpus that's the way it's been attacked now in the state by writ of habeas corpus.

Justice Felix Frankfurter: (Inaudible)

Mr. George H. Mitchell: Both of them are.

Justice Felix Frankfurter: Both?

Mr. George H. Mitchell: Yes.

Justice Felix Frankfurter: (Inaudible)

Mr. George H. Mitchell: As to whether or not the judgment was void that's --

Justice Felix Frankfurter: (Inaudible)

Mr. George H. Mitchell: That the judgment is void?

Justice Felix Frankfurter: Any of the argument -- any of the judgments (Inaudible) --

Mr. George H. Mitchell: No, they are not raised in there.

Justice Felix Frankfurter: (Inaudible)

Justice Charles E. Whittaker: Well is it quite fair to say that not (Inaudible) -- doesn't Oyler say under his interpretation of the statute he wants to show that these sentences in Bedford County, Pennsylvania one being to prohibition and the other to small (Inaudible), were it not such as brings them within your recidivist statute.

Doesn't he claim that?

Mr. George H. Mitchell: He claims as I guess that he was denied due process because he was not allowed to show that --

Justice Charles E. Whittaker: Well --

Mr. George H. Mitchell: -- in the lower courts.

Justice Charles E. Whittaker: -- this is habeas corpus case, nothing can be showed here, then where can he show?

Mr. George H. Mitchell: It is here in habeas corpus and he made his application in the Supreme --

Justice Charles E. Whittaker: That (Inaudible) -- suppose it is (Inaudible) off the record for that purpose we have to assume, our present purposes it seems to me and we have to assume that is (Inaudible), do we not?

Mr. George H. Mitchell: Yes.

Justice Charles E. Whittaker: (Inaudible) is he entitled to relief in a habeas corpus hearing?

Mr. George H. Mitchell: If the judgment is -- if the finding would render the judgment yes, or partially void.

Justice Charles E. Whittaker: Well, if what he says is true, is there room to say that the judgment (Inaudible) judgments in Pennsylvania were void?

Mr. George H. Mitchell: Well, we will show that then, they were not, that they were in compliance with our statute.

That the three felonies set forth in the indictment were of such a nature as were punishable as were crimes punishable by a confinement in the penitentiary and our court has interpreted the statute to mean regardless of where you serve the time if it was a crime punishable by confinement in the penitentiary was one, it was an offense sufficient to support and to sustain the application of the habitual criminal statute.

Justice Charles E. Whittaker: One more question and I'm through. Now supposing he wants to put the matter before your highest court to reexamine that case, then doesn't he have to show us the facts which would bring him relief if the rule be changed now then he is entitled, wouldn't he?

Mr. George H. Mitchell: Yes, he would.

Justice Charles E. Whittaker: Now that -- is he entitled under his averments here to that right, attempt to threaten to change that rule?

Mr. George H. Mitchell: I think he is Your Honor.

Justice Charles E. Whittaker: Well, is he cut off from that if he is denied the right to put that (Inaudible)?

Mr. George H. Mitchell: You mean at the trial court?

Justice Charles E. Whittaker: Yes.

Mr. George H. Mitchell: At the trial court level, as I stated before the question has never been decided if whether defenses as one as you are speaking of is interposed whether or not it would be error for the trial judge not to admit.

Now it's being reached on habeas corpus with all the cases at which I have knowledge of.

If there's any question as to validity of the previous convictions is now being reached by proceedings in habeas corpus.

Chief Justice Earl Warren: One question Mr. Mitchell, both of the petitioners did file a petition for writ of habeas corpus, did they not?

Mr. George H. Mitchell: That's right, sir.

Chief Justice Earl Warren: And they both had claimed (Inaudible), did they not?

Mr. George H. Mitchell: They did.

They said that --

Chief Justice Earl Warren: They both -- and they both claim (Inaudible) deprived them of the opportunity to raise the defenses (Inaudible), did they not?

Mr. George H. Mitchell: That's what they said in the petition.

Chief Justice Earl Warren: That they would (Inaudible) denied the right of error, did they not?

Mr. George H. Mitchell: That's right sir.

Chief Justice Earl Warren: (Inaudible)

Mr. George H. Mitchell: Yes.

They filed -- both filed petitions in the Supreme Court of Appeals, petitions for writs of habeas corpus in the Supreme Court of Appeals of West Virginia.

The court reviewed the petitions and denied their applications without hearing and without an opinion.

Justice Felix Frankfurter: What is your answer to (Inaudible) convicted of a crime (Inaudible)?

Mr. George H. Mitchell: I think our Supreme Court in reviewing these petitions examined the Pennsylvania statutes and they found that the offenses, the crimes therein described were crimes punishable by a confinement in the penitentiary hence Pennsylvania so selected to punish the petitioner in their manner.

Larceny, according to the statute is a felony in Pennsylvania, that was a larceny of a $1250 car.

Burglary was made a felony by the statute in Pennsylvania and he was convicted of both of those crimes and they are punishable under Pennsylvania statute by a confinement in the penitentiary.

However, Pennsylvania has this other statute that allows certain youthful offenders to present to Camp Hill or whatever it is, an industrial school in Pennsylvania and they elected to send him there rather than to send him to the penitentiary.

Our Supreme Court in the case already referred to him, State ex rel Johnson against Skeen, the warden has interpreted that to mean that the convictions are convictions for crimes punishable by sentence to the penitentiary and it doesn't --

Justice Felix Frankfurter: Now suppose Pennsylvania and the statutory law passed an exclusive provision (Inaudible) --

Mr. George H. Mitchell: If it was a juvenile proceeding, that was a yes, they could've Your Honor.

Justice Felix Frankfurter: (Inaudible)

Mr. George H. Mitchell: Juvenile proceeding --

Justice Felix Frankfurter: This is not a (Inaudible) Superior Court, maybe one or the other (Inaudible) --

Mr. George H. Mitchell: That's right sir.

Justice Felix Frankfurter: (Inaudible)

Chief Justice Earl Warren: (Inaudible) you say that your Supreme Court will look at the Pennsylvania statute and determine whether the crime (Inaudible) it was one punishable by (Inaudible) -- it was considered a recidivist in your city (Inaudible) as I understood.

Is that what --

Mr. George H. Mitchell: This --

Chief Justice Earl Warren: -- your Supreme Court (Inaudible) -

Mr. George H. Mitchell: Well, this is what I meant Mr. Chief Justice.

When these petitions were filed in the Supreme Court of Appeals for -- they were application for writs of habeas corpus in reviewing the petitions, the Court would -- to see whether they had probable cause to grant a hearing on them and I think from the review of them, they ascertained that these crimes of which -- that are set forth in his petition were crimes punishable by confinement in the penitentiary.

Therefore, the writ will be denied because he had no grounds for it.

Chief Justice Earl Warren: How would that handle a case like this?

(Inaudible) would your Supreme Court without any (Inaudible) refuse the answers on (Inaudible) --

Mr. George H. Mitchell: I think if -- in his petition, he set forth by affidavit the other evidence from the cause to believe that he was proceeded against or was being proceeded against unjustly that the court would grant him a hearing.

Chief Justice Earl Warren: Mr. Ginsburg.

Argument of David Ginsburg

Mr. David Ginsburg: I'd be very brief.

Mr. Chief Justice, may it please the Court.

Certain questions were asked which I may be able to answer, one having to do with the Brown study.

The question was asked whether he had dealt with this problem of bargain justice and the two paragraphs which I regarded as relevant in this connection are quoted on page 21 of the petitioner's brief.

Brown says that in view of these figures, the statistical data which contained in these records, the records before this Court, on these cases, it is to see why the few prisoners who have been sentenced for life imprisonment under our habitual criminal law feel that they have been discriminated against.

This is one of the chief complaints against West Virginia's habitual criminal law.

Of course, the reason the law was imposed in many cases was due to the fact that the person plead guilty to the present charge in consideration of the law not being imposed.

Bargain justice enters the picture and the record doesn't show the whole picture insofar as the part played by the habitual criminal law in our system of criminal justice concerned.

Question was asked regarding the nature of the statistical data whether it is broken down by county and so on.

Those data are contained in the record in this case.

In the Oyler case in pages 37, about 20 pages going on, they identify the prisoner, they identify the county, the number of prior convictions and the sentences which were imposed.

There's a recapitulation by county on page 59 of the Oyler record. Question was further asked whether what action was taken by the state legislature.

In the Oyler record on page 36, there is the statement, this document was offered to the state legislature in 1957 and one house voted 98 to 2 in favor of abolishing, amending or correcting the habitual criminal statute that the issue was not pursuant to a crime (Inaudible).

Mr. David Ginsburg: Not to my knowledge sir but perhaps in the data which the Attorney General's office will supply, we'll find the answer but in the published material there is no answer to that question as I've seen it.

Reference was made to the case of Collins and Claudy, this was Judge Hastie's opinion of the Third Circuit and it was that opinion which led to the State of Pennsylvania to reverse itself on this issue of notice.

It is quite true as the -- my Brother Mitchell indicates in Collins and Claudy, there was no notice of any kind to the prisoner that he was being dealt with as a habitual offender.

Judge Hastie's reply there was as follows, “We cannot see how any subsequent showing that the accused did not have a good defense can excuse the failure to found one part of the sentence, it's more than the other from the normally prerequisite procedure of notice and hearing.

We are satisfied,” he says, “that fundamental fairness and judicial procedure required the court impose an enhanced penalty only upon the basis of a supporting judicial determination of the essential facts made after the defendant has been informed of and heard upon the issue of recidivism.

That decision led to the State of Pennsylvania to reverse itself.

The state had had decision in effect similar to the one in the Blankenship case here in West Virginia which says that no notice is required, so also Pennsylvania had concluded that no notice was required.

Following Collins and Claudy, however, Benzing and Myers that's referred to in the brief, there was a petition for habeas corpus seeking release from the Pennsylvania state penitentiary.

Benzing had been convicted of voluntary manslaughter and there had been an enhanced punishment.

He was told at the time of sentence just as ordering peremptory were told here that the habitual criminal act was being invoked but he was not told that he had a right to a hearing and time to prepare.

It was held by the Supreme Court of Pennsylvania that although the act doesn't in terms provide for notice or hearing to avoid constitutional problems, the act would be reinterpreted.

And it's shown there as here that neither the petitioner nor the counsel objected when sentence in that case was doubled and the judge did not inform Benzing that he had a right to hearings.

It was held by the Supreme Court of Pennsylvania that there was no waiver when the petitioner did not know that he had any right.

He was not released at courts, it was sent back for re-sentencing and so also I think it would be appropriate in the cases here.

Justice John M. Harlan: Could I ask you one question?

Assuming that the statute is not to be construed as limiting the power of the judge on a request for adjournment that had been made, what is your answer to the question of waiver, a suggestion of waiver in the Oyler case, the counsel's failure, waiver arising from the counsel's failure to ask for any further notice or adjournment.

Justice John M. Harlan: My question is that assuming that if a request by counsel had been made for additional time when he was -- when his client was brought into court in Oyler, that the Court would have had power to grant an adjournment, grant more time.

Mr. David Ginsburg: You were making that assumption --

Justice John M. Harlan: I'm making that assumption, what answer -- assuming that the statute cannot be construed, should not be construed as you suggested earlier as you thought it might be, what answer have you've got on that set of assumptions to the waiver point in the Oyler case?

Mr. David Ginsburg: Yes.

In the Oyler case where he had a trial?

Justice John M. Harlan: Yes.

Mr. David Ginsburg: I would say -- I recognize the possibility that counsel may waive rights.

I don't believe that this is anywhere close to the fact of what actually took place in Oyler but I do believe on these assumptions that I believe counsel could waive his rights.

Justice John M. Harlan: Well, enlighten me as to why you don't think it's any way near what happened in Oyler, that's all I'd like to know.

Mr. David Ginsburg: What actually happened in Oyler was that after the trial and after the motion for a new trial was denied, this information was brought before the Court.

I agree with my Brother Mitchell that the law has understood, the law as written provides that you may contest the issue of identification but that's all you can do.

I don't believe that he waived any rights which he didn't have.

He didn't have a right to raise this in Oyler and he didn't.

I don't believe either counsel or that counsel was culpable in that case.

Justice John M. Harlan: In other words, you stand on the statute, don't you?

Mr. David Ginsburg: We stand on the statute and the record in this case.

Justice John M. Harlan: But if you're mistaken on the statute or one doesn't agree with you on the statute, is there any other answer?

Mr. David Ginsburg: No sir.

Chief Justice Earl Warren: Mr. Ginsburg, I understood (Inaudible) --

Mr. David Ginsburg: Yes, I don't understand that to be an issue in this case, exactly.

Chief Justice Earl Warren: (Inaudible)

Mr. David Ginsburg: No and I believe the court will find that there are numerous decisions cited in both briefs which we are in agreement as to the meaning of the law in the State of West Virginia.

Justice John M. Harlan: Well, perhaps -- excuse me, perhaps I misunderstood Mr. Mitchell and to my point of view, this is important, I had understood him to say that notwithstanding the admission of identification and notwithstanding that the statute permits only the issue of identification, notwithstanding both those considerations that if a request for an adjournment had been made, it would've been honored and the court had power to honor it.

Now maybe I'm wrong about that.

If I am wrong I'd like to be corrected.

Mr. David Ginsburg: I cannot speak of course for Mr. Mitchell.

Within my limited knowledge of what the law is --

Justice John M. Harlan: Perhaps the Chief Justice would allow Mr. Mitchell to answer that because I think it's important.

Do you understand my question?

Mr. David Ginsburg: I think I do, Mr. Justice Harlan.

My answer I think was then that he would have the power to grant it but the question that was asked, what good would it do (Inaudible) --

Justice John M. Harlan: Well, that's a different question.

My question was (Voice Overlap) --

Mr. David Ginsburg: Yes, and he would have the power to grant a continuance.

Chief Justice Earl Warren: But at the time to which the case was continued, the judge then have no power to hear those contentions if he admitted his identity.

Mr. David Ginsburg: That's right sir.

Justice Felix Frankfurter: I would like to ask -- assuming (Inaudible) -- assumed that (Inaudible) assumed their rights on the (Inaudible) -- assume that that is so, assumed that what was done (Inaudible) --

Mr. David Ginsburg: By that you mean, can't the law of West Virginia -- may West Virginia do what it has done in this case, that is to say on the assumption made by Mr. Mitchell that he has said it's possible that West Virginia, the Supreme Court of Appeals received these applications for certiorari, for habeas corpus, they examined it.

They also examined the law of the State of Pennsylvania.

They concluded that this man was guilty of felonies punishable by imprisonment in the penitentiary under the law of West Pennsylvania and then denied the petitions --

Justice Felix Frankfurter: Is that the law in (Inaudible) --

Mr. David Ginsburg: And I would concede that if that were done, so far as concerns that particular aspect of the case without reference either to notice or to equal protection, I would regard that as sufficient under the law.

Justice Felix Frankfurter: (Inaudible)

Mr. David Ginsburg: It would be a curious practice Mr. Justice Frankfurter to have a man in jail under a life sentence and then say to him that you have the right to test this, the notice in hearing which we are giving you is a notice and hearing to file a petition for an application for habeas corpus.

Justice Felix Frankfurter: (Inaudible)

Mr. David Ginsburg: No sir.

That -- this means --

Justice Felix Frankfurter: (Inaudible)

Mr. David Ginsburg: No, there were 983 on this -- its page 59, there were 983 prisoners identified by name who were subject to the recidivist statute and who could have been imprisoned for life.

Of these 983, only 79 were in fact sentenced to life imprisonment.

Although the statute has indicated is mandatory.

904 were imprisoned but only on the last offense.

Justice Felix Frankfurter: (Inaudible)

Mr. David Ginsburg: Precisely.

Justice Felix Frankfurter: (Inaudible)

Mr. David Ginsburg: No sir.

Those are large counties and I will not characterize the State of -- the law observance in them.

Justice Felix Frankfurter: (Inaudible)

Mr. David Ginsburg: Cabell, that's where I come from sir.

Justice Felix Frankfurter: (Inaudible)

Mr. David Ginsburg: (Inaudible)

Justice Felix Frankfurter: (Inaudible)

Mr. David Ginsburg: Yes sir.

Justice Felix Frankfurter: What county is (Inaudible)?

Mr. David Ginsburg: Ohio.

Justice Felix Frankfurter: (Inaudible)

Chief Justice Earl Warren: Mr. Ginsburg, before you sit down, on behalf of the Court, I should like to express my appreciation to you for having to take this as a public service and (Inaudible) lawyers like yourself for the way you -- I mean, take this tasks for public service.

(Inaudible) -- we appreciate the diligence (Inaudible) manner which you have (Inaudible) --